Full text of "Implementation of the Native American Graves Protection and Repatriation Act : hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fourth Congress, first session ... December 6, 1995, Washington, DC"

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X S. HRG. 104-399

IMPLEMENTATION OF THE NATIVE AMERICAN
GRAVES PROTECTION AND REPATRIATION ACT

Y 4. IN 2/11 : S. HRG. 104-399

Inplenentation of the Native ftneric. . .

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

OVERSIGHT HEARING ON PUBLIC LAW 101-601, TO PROVIDE THE AU-
THORITY AND MECHANISM FOR THE REPATRIATION OF NATIVE
AMERICAN HUMAN REMAINS, FUNERARY OBJECTS, SACRED OBJECTS,
AND OBJECTS OF CULTURAL PATRIMONY

DECEMBER 6, 1995
WASHINGTON, DC

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*>#•
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U.S. GOVERNMENT PRINTING OFFICE

££%>.

2^-074 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-052459-8

S ) \ S. HRG. 104-399

IMPLEMENTATION OF THE NATIVE AMERICAN
GRAVES PROTECTION AND REPATRIATION ACT

Y 4. IN 2/1 1 : S. HRG. 104-399

Inplenentation of the Native fineric. . .

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

OVERSIGHT HEARING ON PUBLIC LAW 101-601, TO PROVIDE THE AU-
THORITY AND MECHANISM FOR THE REPATRIATION OF NATIVE
AMERICAN HUMAN REMAINS, FUNERARY OBJECTS, SACRED OBJECTS
AND OBJECTS OF CULTURAL PATRIMONY

DECEMBER 6, 1995
WASHINGTON, DC

U.S. GOVERNMENT PRINTING OFFICE
23-074 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-052459-8

COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota

SLADE GORTON, Washington HARRY REID, Nevada

PETE V. DOMENICI, New Mexico PAUL SIMON, Illinois

NANCY LANDON KASSEBAUM, Kansas DANIEL K. AKAKA, Hawaii

DON NICKLES, Oklahoma PAUL WELLSTONE, Minnesota

BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming
ORRIN G. HATCH, Utah

STEVEN J.W. HEELEY Majority Staff Director /Chief Counsel
PATRICIA M. Zell, Minority Staff Director /Chief Counsel

(ID

CONTENTS

Page

Public Law 101-601, text of 4

Statements:

Antone, Cecil F., Lieutenant Governor, Gila River Indian Community,

Sacaton, AZ 34

Blackowl, Elizabeth, chairwoman, Pawnee Tribe of Oklahoma, Pawnee

OK ; 37

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado 23

Dorgan, Hon. Byron L., U.S. Senator from North Dakota 20

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Com-
mittee on Indian Affairs 1

McManamon, Francis, Departmental Consulting Archaeologist 16

Mentz, Tim, NAGPRA Representative, Standing Rock Sioux Tribe 40

Monroe, Dan, NAGPRA Review Committee, Peabody Essex Museum,

Salem, MA 27

Movnihan, William, chairman, American Association of Museums; presi-
dent and chief executive officer, Milwaukee Public Museum, Milwau-
kee, WI 45

Naranjo, Tessie, chairperson, NAGPRA Review Committee, Santa Clara

Pueblo, Espanola, NM 22

Peregoy, Esquire, Robert, attorney-at-law, Native American Rights Fund,

Washington, DC 37

Stevenson, Katherine H., associate director, Cultural Resource Steward-
ship and Partnerships, National Park Service, Department of the Inte-
rior, Washington, DC 16

Taken Alive, Jesse, chairman, Standing Rock Sioux Tribe, Fort Yates,

North Dakota 40

Appendix

Prepared statements:

Allen, W. Ron, president, National Congress of American Indians (with

attachments) 51

American Indian Ritual Object Repatriation Foundation 58

Antone, Cecil F 67

Bielawski, Ph.D., Ellen, executive director, NAGPRA project director,

and director, KTA (with attachments) 70

Blackowl, Elizabeth 78

Bourland, Greg, secretary, Dakota Territory, Chairmans Council 104

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado 49

Champagne, Duane, director, American Indian Studies Center, UCLA 99

Dorgan, Hon. Byron L., U.S. Senator from North Dakota 50

Drapeau, Darrell, chairman, Dakota Territory Chairmans Council 104

Hale, Albert, president, Navajo Nation 108

Holt, David C., Nez Perce (with attachments) 114

Monroe, Dan (with attachment) 121

Moynihan, William (with attachments) 131

Naranjo, Tessie (with attachment) 147

Nihipali, Kunani, Po'o \" 155

Peregoy, Esquire, Robert (with attachments) 166

Stevenson, Katherine H. (with attachments) 177

Taken Alive, Jesse (with attachments*) 198

(III)

Page

Additional material submitted for the record:
Letters:

Bourland, Greg, chairman, Cheyenne River Sioux Tribe 234

Drapeau, Darrell E., chairman, Business Claims Committee, Yankton

Sioux Tribe 240

Fois, Andrew, Assistant Attorney General, Department of Justice 241

Heyman, I. Michael, secretary, Smithsonian Institution (with attach-
ments) 244

Kibby, Larry, program director, Western Shoshone Historic Preservation

Society (with attachments) 286

•NOTE — other material submitted for the record retained in commit-
tee files.

IMPLEMENTATION OF THE NATIVE AMER-
ICAN GRAVES PROTECTION AND REPATRI-
ATION ACT, [PUBLIC LAW 101-601]

WEDNESDAY, DECEMBER 6, 1995

U.S. Senate,
Committee on Indian Affairs,

Washington, DC.
The committee met, pursuant to notice, at 10 a.m. in room 485,
Russell Senate Office Building, Hon. Daniel K. Inouye (vice chair-
man of the subcommittee) presiding.
Present: Senators Inouye, Dorgan, and Campbell.

STATEMENT OF HON. DAMEL K. INOUYE, U.S. SENATOR FROM
HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator Inouye. Good morning. I am pleased to welcome all of
you to this hearing this morning on the implementation of the Na-
tive American Graves Protection and Repatriation Act.

The chairman of the committee, Mr. McCain, had planned to be
here to chair this meeting, but was advised late yesterday that he
would be needed to address matters of national security in Bosnia
at another committee.

Enacted into law at the end of the 101st session of the Congress,
this act provides the authority and mechanism for the repatriation
of Native American human remains, funerary objects, sacred ob-
jects, and objects of cultural patrimony. Final regulations of the im-
plementation of the act were published in the "Federal Register" on
Monday of this week.

Since its enactment, more than 2,700 Native American human
remains, nearly 123,000 associated funerary objects, 16 objects of
cultural patrimony, and 212 sacred objects have been repatriated.

In the 101st session of the Congress, the committee held an over-
sight hearing on the initial activities associated with the implemen-
tation of the act, and this morning the committee meets to receive
an update on the implementation of the act.

In one of the first legal actions to be brought under the act, a
Native Hawaiian organization, Hui Malama I Na Kupuna O Ha-
wai'i Nei, sued the Secretary of the Navy and the Bernice Pauahi
Hawaii Bishop Museum, asserting that, first, the Secretary had
violated the act by failing to expeditiously return Native Hawaiian
human remains that had been disinterred from the Mokapu Penin-
sula and, second, in conducting additional scientific research on the
remains, the Secretary further violated the act.

(1)

This litigation has raised several interesting questions, some of
which I believe we did not anticipate at the time the Congress was
considering the act.

Following their testimony, I wouldd like to call upon the wit-
nesses to share with us any views they may have on some of the
issues raised by this litigation.

One of the issues of first impression is whether Native American
human remains have standing under the law in their own right to
assert an injury based upon the violation or desecration of those re-
mains.

In this action, Hui Malama asserted that, according to Hawaiian
custom, human remains are spiritual beings which possess all of
the traits of a living person.

The Federal district court in Hawaii concluded that there was no
such standing under the act because the act classifies human re-
mains as cultural items and fails to list human remains as legally-
recognized persons or as an entity with legally-protected interests
under the statute.

The court went on to find that there would be no standing under
common law, either, because the human remains could not dem-
onstrate that they had suffered an injury, in fact, even though the
court notes other non-human entities such as animals and natural
habitats and other inanimate objects such as ships and corpora-
tions have been accorded standing.

The court concludes that Hui Malama has not shown that a com-
parable identifiable benefit to living members of society would re-
sult from affording standing for human remains.

The court also discussed the notion of an action being brought by
a person or entity in a guardianship capacity for human remains,
but finds no authority for guardian -initiated action in this act.

This finding poses the interesting legal question of who may as-
sert the right to protection on behalf of human remains if there is
no readily-identifiable descendent or relative.

The second concern that Hui Malama sought to have the court
address was whether information derived from additional scientific
research conducted on the remains could be protected from public
disclosure by one of the exceptions to the Freedom of Information
Act.

The court finds that the inventory of the Mokapu remains is sub-
ject to the Freedom of Information Act and finds that the Native
American Graves Protection and Repatriation Act is not a "with-
holding statute" for purposes of the Freedom of Information Act be-
cause the act does not indicate that any inventory results are to
be confidential or privileged in any respect.

In addition, the court finds that the Freedom of Information Act
exemption that protects individuals from invasions of privacy — an
exception that aims to protect individuals from public scrutiny re-
garding personal affairs — does not apply because it is intended to
protect information regarding particular living persons.

Finally, the court concludes that the exercise of this power of eq-
uity to protect information about remains would be inappropriate
on the basis of its findings that there are no extreme or exceptional
circumstances and that the plain language of the statute does not
exempt inventory information from public disclosure.

Further, the court finds that the Native American Graves Protec-
tion and Repatriation Act does not prevent museums or Federal
agencies from conducting additional scientific studies or research
on human remains except after completion of the initial inventory.

I've taken time to raise these matters because they impress me
as important considerations that Native people may want to have
the Congress address, particularly given the fact tnat this ruling
will not be appealed. So, as of this moment, it is the law of the
land.

Again, I want to urge any of the witnesses who may wish to do
so to address these issues as they present testimony to the commit-
tee today, and we will keep the record open, if such is necessary,
so that witnesses and other interested parties may submit addi-
tional testimony.

[Text of Public Law 101-601 follows:]

PUBLIC LAW 101-601— NOV. 16, 1990

NATIVE AMERICAN GRAVES

PROTECTION AND REPATRIATION

ACT

104 STAT. 3048

PUBLIC LAW 101-601— NOV. 16, 1990

Public Law 101-601
101st Congress

An Act

Nov. 16. 1990
[H.R*5237]

Native

American

Graves

Protection

and

Repatriation

Act.

Hawaiian

Natives.

Historic

preservation.

25 USC 3001

note.

25 USC 3001.

To provide for the protection of Native American graves, and for other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Native American Graves Protection
and Repatriation Act".

SEC. 2. DEFINITIONS.

For purposes of this Act, the term—

(1) "burial site" means any natural or prepared physical
location, whether originally below, on, or above the surface of
the earth, into which as a part of the death rite or ceremony of a
culture, individual human remains are deposited.

(2) "cultural affiliation" means that there is a relationship of
shared group identity which can be reasonably traced histori-
cally or prehistorically between a present day Indian tribe or
Native Hawaiian organization and an identifiable earlier group.

(3) "cultural items" means human remains and —

(A) "associated funerary objects" which shall mean ob-
jects that, as a part of the death rite or ceremony of a
culture, are reasonably believed to have been placed with
individual human remains either at the time of death or
later, and both the human remains and associated funerary
objects are presently in the possession or control of a Fed-
eral agency or museum, except that other items exclusively
made for burial purposes or to contain human remains
shall be considered as associated funerary objects.

(B) "unassociated funerary objects" which shall mean
objects that, as a part of the death rite or ceremony of a
culture, are reasonably believed to have been placed with
individual human remains either at the time of death or
later, where the remains are not in the possession or con-
trol of the Federal agency or museum and the objects can
be identified by a preponderance of the evidence as related
to specific individuals or families or to known human re-
mains or, by a preponderance of the evidence, as having
been removed from a specific burial site of an individual
culturally affiliated with a particular Indian tribe,

(C) "sacred objects" which shall mean specific ceremonial
objects which are needed by traditional Native American
religious leaders for the practice of traditional Native
American religions by their present day adherents, and

(D) "cultural patrimony" which shall mean an object
having ongoing historical, traditional, or cultural impor-
tance central to the Native American group or culture
itself, rather than property owned by an individual Native

PUBLIC LAW 101-601— NOV. 16, 1990 104 STAT. 3049

American, and which, therefore, cannot be alienated,
appropriated, or conveyed by any individual regardless of
whether or not the individual is a member of the Indian
tribe or Native Hawaiian organization and such object shall
have been considered inalienable by such Native American
group at the time the object was separated from such group.

(4) "Federal agency" means any department, agency, or
instrumentality of the United States. Such term does not
include the Smithsonian Institution.

(5) "Federal lands" means any land other than tribal lands
which are controlled or owned by the United States, including
lands selected by but not yet conveyed to Alaska Native Cor-
porations and groups organized pursuant to the Alaska Native
Claims Settlement Act of 1971.

(6) "Hui Malama I Na Kupuna O Hawai'i Nei" means the
nonprofit, Native Hawaiian organization incorporated under
the laws of the State of Hawaii by that name on April 17, 1989,
for the purpose of providing guidance and expertise in decisions
dealing with Native Hawaiian cultural issues, particularly
burial issues.

(7) "Indian tribe" means .any tribe, band, nation, or other
organized group or community of Indians, including any Alaska
Native village (as defined in, or established pursuant to, the
Alaska Native Claims Settlement Act), which is recognized as
eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.

(8) "museum" means any institution or State or local govern-
ment agency (including any institution of higher learning) that
receives Federal funds and has possession of, or control over,
Native American cultural items. Such term does not include the
Smithsonian Institution or any other Federal agency.

(9) "Native American" means of, or relating to, a tribe,
people, or culture that is indigenous to the United States.

(10) "Native Hawaiian" means any individual who is a
descendant of the aboriginal people who, prior to 1778, occupied
and exercised sovereignty in the area that now constitutes the
State of Hawaii.

(11) "Native Hawaiian organization" means any organization
which —

(A) serves and represents the interests of Native Hawai-
ians,

(B) has as a primary and stated purpose the provision of
services to Native Hawaiians, and

shall include the Office of Hawaiian Affairs and Hui Malama I
Na Kupuna O Hawai'i Nei.

(12) "Office of Hawaiian Affairs" means the Office of Ha-
waiian Affairs established by the constitution of the State of
Hawaii.

(13) "right of possession" means possession obtained with the
voluntary consent of an individual or group that had authority
of alienation. The original acquisition of a Native American
unassociated funerary object, sacred object or object of cultural
patrimony from an Indian tribe or Native Hawaiian organiza-
tion with the voluntary consent of an individual or group with
authority to alienate such object is deemed to give right of
possession of that object, unless the phrase so defined would, as

104 STAT. 3050

PUBLIC LAW 101-601— NOV. 16, 1990

applied in section 7(c), result in a Fifth Amendment taking by
the United States as determined by the United States Claims
Court pursuant to 28 U.S.C. 1491 in which event the "right of
possession" shall be as provided under otherwise applicable
property law. The original acquisition of Native American
human remains and associated funerary objects which were
excavated, exhumed, or otherwise obtained with full knowledge
and consent of the next of kin or the official governing body of
the appropriate culturally affiliated Indian tribe or Native
Hawaiian organization is deemed to give right of possession to
those remains.

(14) "Secretary" means the Secretary of the Interior.

(15) "tribal land" means —

(A) all lands within the exterior boundaries of any Indian
reservation;

(B) all dependent Indian communities;

(C) any lands administered for the benefit of Native
Hawaiians pursuant to the Hawaiian Homes Commission
Act, 1920, and section 4 of Public Law 86-3.

25 USC 3002. SEC. 3. OWNERSHIP.

(a) Native American Human Remains and Objects.— The owner-
ship or control of Native American cultural items which are exca-
vated or discovered on Federal or tribal lands after the date of
enactment of this Act shall be (with priority gi\en in the order
listed) —

(1) in the case of Native American human remains and
associated funerary objects, in the lineal descendants of the
Native American; or

(2) in any case in which such lineal descendants cannot be
ascertained, and in the case of unassociated funerary objects,
sacred objects, and objects of cultural patrimony—

(A) in the Indian tribe or Native Hawaiian organization
on whose tribal land such objects or remains were
discovered;
Claims. (B) in the Indian tribe or Native Hawaiian organization

which has the closest cultural affiliation with such remains
or objects and which, upon notice, states a claim for such
remains or objects; or

(C) if the cultural affiliation of the objects cannot be
reasonably ascertained and if the objects were discovered
on Federal land that is recognized by a final judgment of
the Indian Claims Commission or the United States Court
of Claims as the aboriginal land of some Indian tribe-
CD in the Indian tribe that is recognized as aborigi-
nally occupying the area in which the objects were
discovered, if upon notice, such tribe states a claim for
such remains or objects, or

(2) if it can be shown by a preponderance of the
evidence that a different tribe has a stronger cultural
relationship with the remains or objects than the tribe
or organization specified in paragraph (1), in the Indian
tribe that has the strongest demonstrated relationship,
if upon notice, such tribe states a claim for such re-
mains or objects.

(b) Unclaimed Native American Human Remains and Ob-
Regulations. JECTS— Native American cultural items not claimed under subsec-

PUBLIC LAW 101-601— NOV. 16, 1990 104 STAT. 3051

tion (a) shall be disposed of in accordance with regulations
promulgated by the Secretary in consultation with the review
committee established under section 8, Native American groups,
representatives of museums and the scientific community.

(c) Intentional Excavation and Removal of Native American
Human Remains and Objects. — The intentional removal from or
excavation of Native American cultural items from Federal or tribal
lands for purposes of discovery study, or removal of such items is
permitted only if —

(1) such items are excavated or removed pursuant to a permit
issued under section 4 of the Archaeological Resources Protec-
tion Act of 1979 (93 Stat. 721; 16 U.S.C. 470aa et seq.) which
shall be consistent with this Act;

(2) such items are excavated or removed after consultation
with or, in the case of tribal lands, consent of the appropriate (if
any) Indian tribe or Native Hawaiian organization;

(3) the ownership and right of control of the disposition of
such items shall be as provided in subsections (a) and (b); and

(4) proof of consultation or consent under paragraph (2) is
shown.

(d) Inadvertent Discovery of Native American Remains and
Objects.— (1) Any person who knows, or has reason to know, that
such person has discovered Native American cultural items on
Federal or tribal lands after the date of enactment of this Act shall
notify, in writing, the Secretary of the Department, or head of any
other agency or instrumentality of the United States, having pri-
mary management authority with respect to Federal lands and the
appropriate Indian tribe or Native Hawaiian organization with
respect to tribal lands, if known or readily ascertainable, and, in the
case of lands that have been selected by an Alaska Native Corpora-
tion or group organized pursuant to the Alaska Native Claims
Settlement Act of 1971, the appropriate corporation or group. If the
discovery occurred in connection with an activity, including (but not
limited to) construction, mining, logging, and agriculture, the person
shall cease the activity in the area of the discovery, make a reason-
able effort to protect the items discovered before resuming such
activity, and provide notice under this subsection. Following the
notification under this subsection, and upon certification by the
Secretary of the department or the head of any agency or
instrumentality of the United States or the appropriate Indian tribe
or Native Hawaiian organization that notification has been re-
ceived, the activity may resume after 30 days of such certification.

(2) The disposition of and control over any cultural items exca-
vated or removed under this subsection shall be determined as
provided for in this section.

(3) If the Secretary of the Interior consents, the responsibilities (in
whole or in part) under paragraphs (1) and (2) of the Secretary of
any department (other than the Department of the Interior) or the
head of any other agency or instrumentality may be delegated to the
Secretary with respect to any land managed by such other Secretary
or agency head.

(e) Relinquishment. — Nothing in this section shall prevent the
governing body of an Indian tribe or Native Hawaiian organization
from expressly relinquishing control over any Native American
human remains, or title to or control over any funerary object, or
sacred object.

104 STAT. 3052 PUBLIC LAW 101-601— NOV. 16, 1990

SEC. 4. ILLEGAL TRAFFICKING.

(a) Illegal Trafficking. — Chapter 53 of title 18, United States
Code, is amended by adding at the end thereof the following new
section:

"§1170. Illegal Trafficking in Native American Human Remains
and Cultural Items

"(a) Whoever knowingly sells, purchases, uses for profit, or trans-
ports for sale or profit, the human remains of a Native American
without the right of possession to those remains as provided in the
Native American Graves Protection and Repatriation Act shall be
fined in accordance with this title, or imprisoned not more than 12
months, or both, and in the case of a second or subsequent violation,
be fined in accordance with this title, or imprisoned not more than 5
years, or both.

"(b) Whoever knowingly sells, purchases, uses for profit, or trans-
ports for sale or profit any Native American cultural items obtained
in violation of the Native American Grave Protection and Repatri-
ation Act shall be fined in accordance with this title, imprisoned not
more than one year, or both, and in the case of a second or
subsequent violation, be fined in accordance with this title, impris-
oned not more than 5 years, or both.".

(b) Table of Contents.— The table of contents for chapter 53 of
title 18, United States Code, is amended by adding at the end thereof
the following new item:

"1170. Illegal Trafficking in Native American Human Remains and Cultural
Items.".

Museums. SEC. 5. INVENTORY FOR HUMAN REMAINS AND ASSOCIATED FUNERARY

25 USC 3003. OBJECTS.

(a) In General. — Each Federal agency and each museum which
has possession or control over holdings or collections of Native
American human remains and associated funerary objects shail
compile an inventory of such items and, to the extent possible based
on information possessed by such museum or Federal agency, iden-
tify the geographical and cultural affiliation of such item.

(b) Requirements. — (1) The inventories and identifications re-
quired under subsection (a) shall be —

(A) completed in consultation with tribal government and
Native Hawaiian organization officials and traditional religious
leaders;

(B) completed by not later than the date that is 5 years after
the date of enactment of this Act, and

(C) made available both during the time they are being con-
ducted and afterward to a review committee established under
section 8.

(2) Upon request by an Indian tribe or Native Hawaiian organiza-
tion which receives or should have received notice, a museum or
Federal agency shall supply additional available documentation to
supplement the information required by subsection (a) of this sec-
tion. The term "documentation" means a summary of existing
museum or Federal agency records, including inventories or cata-
logues, relevant studies, or other pertinent data for the limited
purpose of determining the geographical origin, cultural affiliation,
and basic facts surrounding acquisition and accession of Native
American human remains and associated funerary objects subject to
this section. Such term does not mean, and this Act shall not be

PUBLIC LAW 101-601— NOV. 16, 1990

104 STAT. 3053

construed to be an authorization for, the initiation of new scientific
studies of such remains and associated funerary objects or other
means of acquiring or preserving additional scientific information
from such remains and objects.

(c) Extension of Time for Inventory. — Any museum which has
made a good faith effort to carry out an inventory and identification
under this section, but which has been unable to complete the
process, may appeal to the Secretary for an extension of the time
requirements set forth in subsection (bXD(B). The Secretary may
extend such time requirements for any such museum upon a finding
of good faith effort. An indication of good faith shall include the
development of a plan to carry out the inventory and identification
process.

(d) Notification. — (1) If the cultural affiliation of any particular
Native American human remains or associated funerary objects is
determined pursuant to this section, the Federal agency or museum
concerned shall, not later than 6 months after the completion of the
inventory, notify the affected Indian tribes or Native Hawaiian
organizations.

(2) The notice required by paragraph (1) shall include infor-
mation —

(A) which identifies each Native American human remains or
associated funerary objects and the circumstances surrounding
its acquisition;

(B) which lists the human remains or associated funerary
objects that are clearly identifiable as to tribal origin; and

(C) which lists the Native American human remains and
associated funerary objects that are not clearly identifiable as
being culturally affiliated with that Indian tribe or Native
Hawaiian organization, but which, given the totality of cir-
cumstances surrounding acquisition of the remains or objects,
are determined by a reasonable belief to be remains or objects
culturally affiliated with the Indian tribe or Native Hawaiian
organization.

(3) A copy of each notice provided under paragraph (1) shall be
sent to the Secretary who shall publish each notice in the Federal
Register.

(e) Inventory. — For the purposes of this section, the term "inven-
tory" means a simple itemized list that summarizes the information
called for by this section.

SEC. 6. SUMMARY FOR UNASSOCIATED FUNERARY OBJECTS. SACRED OB-
JECTS. AND CULTURAL PATRIMONY.

(a) In General. — Each Federal agency or museum which has Museums.
possession or control over holdings or collections of Native Amer-
ican unassociated funerary objects, sacred objects, or objects of
cultural patrimony shall provide a written summary of such objects

based upon available information held by such agency or museum.
The summary shall describe the scope of the collection, kinds of
objects included, reference to geographical location, means and
period of acquisition and cultural affiliation, where readily as-
certainable.

(b) Requirements. — (1) The summary required under subsection
(a) shall be —

(A) in lieu of an object-by-object inventory;

(B) followed by consultation with tribal government and
Native Hawaiian organization officials and traditional religious
leaders; and

Federal

publication.

25 USC 3004.

104 STAT. 3054 PUBLIC LAW 101-601— NOV. 16, 1990

(C) completed by not later than the date'that is 3 years after
the date of enactment of this Act.
(2) Upon request, Indian Tribes and Native Hawaiian organiza-
tions shall have access to records, catalogues, relevant studies or
other pertinent data for the limited purposes of 'determining the
geographic origin, cultural affiliation, and basic facts surrounding
acquisition and accession of Native American objects subject to this
section. Such information shall be provided in a reasonable manner
to be agreed upon by all parties.

25 USC 3005. SEC. 7. REPATRIATION.

(a) Repatriation of Native American Human Remains and
Objects Possessed or Controlled by Federal Agencies and Muse-
ums. — (1) If, pursuant to section 5, the cultural affiliation of Native
American human remains and associated funerary objects with a
particular Indian tribe or Native Hawaiian organization is estab-
lished, then the Federal agency or museum, upon the request of a
known lineal descendant of the Native American or of the tribe or
organization and pursuant to subsections (b) and (e) of this section,
shall expeditiously return such remains and associated funerary
objects.

(2) If, pursuant to section 6, the cultural affiliation with a particu-
lar Indian tribe or Native Hawaiian organization is shown with
respect to unassociated funerary objects, sacred objects or objects of
cultural patrimony, then the Federal agency or museum, upon the
request of the Indian tribe or Native Hawaiian organization and
pursuant to subsections (b), (c) and (e) of this section, shall expedi-
tiously return such objects.

(3) The return of cultural items covered by this Act shall be in
consultation with the requesting lineal descendant or tribe or
organization to determine the place and manner of delivery of such
items.

(4) Where cultural affiliation of Native American human remains
and funerary objects has not been established in an inventory
prepared pursuant to section 5, or the summary pursuant to section
6, or where Native American human remains and funerary objects
are not included upon any such inventory, then, upon request and
pursuant to subsections (b) and (e) and, in the case of unassociated
funerary objects, subsection (c), such Native American human re-
mains and funerary objects shall be expeditiously returned where
the requesting Indian tribe or Native Hawaiian organization can
show cultural affiliation by a preponderance of the evidence based
upon geographical, kinship, biological, archaeological, anthropo-
logical, linguistic, folkloric, oral traditional, historical, or other
relevant information or expert opinion.

(5) Upon request and pursuant to subsections (b), (c) and (e), sacred
objects and objects of cultural patrimony shall be expeditiously
returned where —

(A) the requesting party is the direct lineal descendant of an
individual who owned the sacred object;

(B) the requesting Indian tribe or Native Hawaiian organiza-
tion can show that the object was owned or controlled by the
tribe or organization; or

(C) the requesting Indian tribe or Native Hawaiian organiza-
tion can show that the sacred object was owned or controlled by
a member thereof, provided that in the case where a sacred
object was owned by a member thereof, there are no identifiable

PUBLIC LAW 101-601— NOV. 16, 1990 104 STAT. 3055

lineal descendants of said member or the lineal descendants,
upon notice, have failed to make a claim for the object under
this Act.

(b) Scientific Study. — If the lineal descendant, Indian tribe, or
Native Hawaiian organization requests the return of culturally
affiliated Native American cultural items, the Federal agency or
museum shall expeditiously return such items unless such items are
indispensable for completion of a specific scientific study, the out-
come of which would be of major benefit to the United States. Such
items shall be returned by no later than 90 days after the date on
which the scientific study is completed.

(c) Standard of Repatriation.— If a known lineal descendant or
an Indian tribe or Native Hawaiian organization requests the return
of Native American unassociated funerary objects, sacred objects or
objects of cultural patrimony pursuant to this Act and presents
evidence which, if standing alone before the introduction of evidence
to the contrary, would support a finding that the Federal agency or
museum did not have the right of possession, then such agency or
museum shall return such objects unless it can overcome such
inference and prove that it has a right of possession to the objects.

(d) Sharing of Information by Federal Agencies and Muse-
ums.— Any Federal agency or museum shall share what information
it does possess regarding the object in question with the known
lineal descendant, Indian tribe, or Native Hawaiian organization to
assist in making a claim under this section.

(e) Competing Claims.— Where there are multiple requests for
repatriation of any cultural item and, after complying with the
requirements of this Act, the Federal agency or museum cannot
clearly determine which requesting party is the most appropriate
claimant, the agency or museum may retain such item until the
requesting parties agree upon its disposition or the dispute is
otherwise resolved pursuant to the provisions of this Act or by a
court of competent jurisdiction.

(f) Museum Obligation. — Any museum which repatriates any
item in good faith pursuant to this Act shall not be liable for claims
by an aggrieved party or for claims of breach of fiduciary duty,
public trust, or violations of state law that are inconsistent with the
provisions of this Act.

SEC. 8. REVIEW COMMITTEE. 25 USC 3006

(a) Establishment— Within 120 days after the date of enactment
of this Act, the Secretary shall establish a committee to monitor and
review the implementation of the inventory and identification proc-
ess and repatriation activities required under sections 5, 6 and 7.

to) Membership.— <1) The Committee established under subsection
(a) shall be composed of 7 members,

(A) 3 of whom shall be appointed by the Secretary from
nominations submitted by Indian tribes, Native Hawaiian
organizations, and traditional Native American religious lead-
ers with at least 2 of such persons being traditional Indian
religious leaders;

(B) 3 of whom shall be appointed by the Secretary from
nominations submitted by national museum organizations and
scientific organizations; and

(C) 1 who shall be appointed by the Secretary from a list of
persons developed and consented to by all of the members
appointed pursuant to subparagraphs (A) and (B).

104 STAT. 3056 PUBLIC LAW 101-601— NOV. 16, 1990

(2) The Secretary may not appoint Federal officers or employees to
the committee.

(3) In the event vacancies shall occur, such vacancies shall be
filled by the Secretary in the same manner as the original appoint-
ment within 90 days of the occurrence of such vacancy.

(4) Members of the committee established under subsection (a)
shall serve without pay, but shall be reimbursed at a rate equal to
the daily rate for GS-18 of the General Schedule for each day
(including travel time) for which the member is actually engaged in
committee business. Each member shall receive travel expenses,
including per diem in lieu of subsistence, in accordance with sec-
tions 5702 and 5703 of title 5, United States Code.

(1) designating one of the members of the committee as
chairman;

(2) monitoring the inventory and identification process con-
ducted under sections 5 and 6 to ensure a fair, objective consid-
eration and assessment of all available relevant information
and evidence;

(3) upon the request of any affected party, reviewing and
making findings related to —

(A) the identity or cultural affiliation of cultural items, or

(B) the return of such items;

(4) facilitating the resolution of any disputes among Indian
tribes, Native Hawaiian organizations, or lineal descendants
and Federal agencies or museums relating to the return of such
items including convening the parties to the dispute if deemed
desirable;

(5) compiling an inventory of culturally unidentifiable human
remains that are in the possession or control of each Federal
agency and museum and recommending specific actions for
developing a process for disposition of such remains;

(6) consulting with Indian tribes and Native Hawaiian
organizations and museums on matters within the scope of the
work of the committee affecting such tribes or organizations;

(7) consulting with the Secretary in the development of regu-
lations to carry out this Act;

(8) performing such other related functions as the Secretary
may assign to the committee; and

(9) making recommendations, if appropriate, regarding future
care of cultural items which are to be repatriated.

(d) Any records and findings made by the review committee
pursuant to this Act relating to the identity or cultural affiliation of
any cultural items and the return of such items may be admissible
in any action brought under section 15 of this Act.

(e) Recommendations and Report.— The committee shall make
the recommendations under paragraph (c)(5) in consultation with
Indian tribes and Native Hawaiian organizations and appropriate
scientific and museum groups.

(f) Access.— The Secretary shall ensure that the committee estab-
lished under subsection (a) and the members of the committee have
reasonable access to Native American cultural items under review
and to associated scientific and historical documents.

(g) Duties of Secretary. — The Secretary shall —

Regulations. (1) establish such rules and regulations for the committee as

may be necessary, and

PUBLIC LAW 101-601— NOV. 16, 1990 104 STAT. 3057

(2) provide reasonable administrative and staff support nec-
essary for the deliberations of the committee.

(h) Annual Report. — The committee established under subsec-
tion (a) shall submit an annual report to the Congress on the
progress made, and any barriers encountered, in implementing this
section during the previous year.

(i) Termination. — The committee established under subsection (a)
shall terminate at the end of the 120-day period beginning on the
day the Secretary certifies, in a report submitted to Congress, that
the work of the committee has been completed.

SEC. 9. PENALTY. Museums.

25 USC 3007

(a) Penalty. — Any museum that fails to comply with the require-
ments of this Act may be assessed a civil penalty by the Secretary of
the Interior pursuant to procedures established by the Secretary
through regulation. A penalty assessed under this subsection shall
be determined on the record after opportunity for an agency hear-
ing. Each violation under this subsection shall be a separate offense.

(h) Amount of Penalty. — The amount of a penalty assessed
under subsection (a) shall be determined under regulations promul-
gated pursuant to this Act, taking into account, in addition to other
factors —

(1) the archaeological, historical, or commercial value of the
item involved;

(2) the damages suffered, both economic and noneconomic, by
an aggrieved party, and

(3) the number of violations that have occurred.

(c) Actions To Recover Penalties. — If any museum fails to pay Courts,
an assessment of a civil penalty pursuant to a final order of the
Secretary that has been issued under subsection (a) and not ap-
pealed or after a final judgment has been rendered on appeal of such
order, the Attorney General may institute a civil action in an
appropriate district court of the United States to collect the penalty.

In such action, the validity and amount of such penalty shall not be
subject to review.

(d) Subpoenas. — In hearings held pursuant to subsection (a),
subpoenas may be issued for the attendance and testimony of wit-
nesses and the production of relevant papers, books, and documents.
Witnesses so summoned shall be paid the same fees and mileage
that are paid to witnesses in the courts of the United States.

SEC. 10. GRANTS. 25 USC 3008.

(a) Indian Tribes and Native Hawaiian Organizations. — The
Secretary is authorized to make grants to Indian tribes and Native
Hawaiian organizations for the purpose of assisting such tribes and
organizations in the repatriation of Native American cultural items.

(b) Museums. — The Secretary is authorized to make grants to
museums for the purpose of assisting the museums in conducting
the inventories and identification required under sections 5 and 6.

SEC. 11. SAVINGS PROVISIONS. 25 USC 3009.

Nothing in this Act shall be construed to —

(1) limit the authority of any Federal agency or museum to —
(A) return or repatriate Native American cultural items
to Indian tribes, Native Hawaiian organizations, or individ-
uals, and

104 STAT. 3058 PUBLIC LAW 101-601-NOV. 16, 1990

(B) enter into any other agreement with the consent of
the culturally affiliated tribe or organization as to the
disposition of, or control over, items covered by this Act;

(2) delay actions on repatriation requests that are pending on
the date of enactment of this Act;

(3) deny or otherwise affect access to any court;

(4) limit any procedural or substantive right which may
otherwise be secured to individuals or Indian tribes or Native
Hawaiian organizations; or

(5) limit the application of any State or Federal law pertain-
ing to theft or stolen property.

25 USC 3010. SEC. 12. SPECIAL RELATIONSHIP BETWEEN FEDERAL GOVERNMENT AND

INDIAN TRIBES.

This Act reflects the unique relationship between the Federal

Government and Indian tribes and Native Hawaiian organizations

and should not be construed to establish a precedent with respect to

any other individual, organization or foreign government.

25 USC 3011. SEC. 13. REGULATIONS.

The Secretary shall promulgate regulations to carry out this Act
within 12 months of enactment.
25 USC 3012. SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated such sums as may be
necessary to carry out this Act.

25 USC 3013. SEC. 15. ENFORCEMENT.

Courts The United States district courts shall have jurisdiction over any

action brought by any person alleging a violation of this Act and
shall have the authority to issue such orders as may be necessary to
' enforce the provisions of this Act.

a Approved November 16, 1990.

LEGISLATIVE HISTORY— H.R. 5237:

HOUSE REPORTS: No. 101-877 (Comra. on Interior and Insular Affairs).
CONGRESSIONAL RECORD, Vol. 136 (1990):

Oct. 22, considered and passed House.

Oct. 25. considered and passed Senate; passage vitiated.

Oct. 26, reconsidered and passed Senate, amended.

Oct. 27, House concurred in Senate amendments.

Senator Inouye. This morning we have two panels, and I would
like to call upon the first panel: The associate director of the Cul-
tural Resource Stewardship and Partnerships, National Park Serv-
ice, Katherine H. Stevenson; the chairperson of the Review Com-
mittee of Santa Clara Pueblo, Tessie Naranjo; and a member of the
Review Committee and of the Peabody Essex Museum of Salem,
Massachusetts, Dan Monroe.

Ladies and gentlemen, welcome. May I call upon Associate Direc-
tor Stevenson.

STATEMENT OF KATHERINE H. STEVENSON, ASSOCIATE DI-
RECTOR, CULTURAL RESOURCE STEWARDSHIP AND PART-
NERSHIPS, NATIONAL PARK SERVICE, DEPARTMENT OF THE
INTERIOR, WASHINGTON, DC, ACCOMPANIED BY FRANCIS
McMANAMON, DEPARTMENTAL CONSULTING ARCHAEOLO-
GIST

Ms. Stevenson. Thank you, Mr. Chairman.

Mr. Chairman, I very much appreciate this opportunity to offer
the views of the National Park Service and the Secretary of the In-
terior on the implementation of the Native American Graves Pro-
tection and Repatriation Act.

I have formal remarks, which I'd like to submit for the record,
and then, if I may, a synopsis of my remarks.

Senator Inouye. Without objection, the full statements of all our
witnesses will be made part of the record.

Ms. Stevenson. Thank you, Mr. Chairman.

NAGPRA was enacted on November 16, 1990, to address the
rights of lineal descendants, Indian tribes, and Native Hawaiian or-
ganizations to Native American human remains, funerary objects,
sacred objects, and objects of cultural patrimony with which they
are affiliated.

The Secretary of the Interior is responsible for implementing in
three separate areas: Development of regulations, establishment of
a grants program, and establishment of a Review Committee to ad-
vise on regulations and assist in implementation.

As far as the regs are concerned, as you have mentioned, the
final regs have been published on December 4, 1995, and I have
a copy of those for people who may not have a copy, since it was
so recent.

On May 28, 1993, we published the proposed regulations. We re-
ceived many, many comments. There was much consultation with
the Review Committee during the period September 23 through
May 1994. The draft final rule was published in September 1994
and received extensive and thorough review. The final rule was
published, as I just said, on December 4.

In terms of the grants, we had funds appropriated in fiscal year
1994, fiscal year 1995, and they are proposed for fiscal year 1996.
During that period we awarded 83 grants totaling $4.37 million.
Those grants helped assist educational workshops, inventories, re-
views, and coordinated discussions.

The Review Committee was established in April 1992. They have
met 11 times. They have been deeply involved with the regulations,
and they have facilitated resolution of disputes when they have
been called to their attention. They have been dedicated and re-

sponsible colleagues, and I'd like to offer them my compliments and
thanks for being such a delight to work with.

Thus far, 847 museums and Federal agencies have provided sum-
maries to the Indian tribes and Native Hawaiian organizations.
The inventories are now being sent. We have received 459 thus far
but, as you know, the deadline is not until next May.

The museums and Federal agencies have announced, as you just
said, willingness to repatriate 2,713 human remains, 122,000 fu-
nerary objects, 212 sacred objects, and 16 of cultural patrimony.

As you know, you've been very supportive of this bill and of our
agency's efforts to implement the bill. We need your support to as-
sure that its complicated and very sensitive process continues. We
also ask your indulgence as we downsize and live within our budg-
et. Things may slow down as more notices are published and there-
fore the potential for disputes grows.

We appreciate very much your willingness to have us testify here
today.

That concludes my remarks. Thank you very much.

[Prepared statement of Ms. Stevenson appears in appendix.]

Senator Inouye. Thank you very much, Ms. Stevenson.

I will question the witnesses as we go along instead of waiting
until the full panel concludes.

Ms. Stevenson, in your testimony you indicated that 337 grant
proposals were submitted, and with a total request of over $30 mil-
lion, and you have indicated in your testimony that the grant pro-
gram is needed now more than ever.

Ms. Stevenson. Yes, sir.

Senator Inouye. What level of funding on an annual basis would
be adequate to meet this need?

Ms. Stevenson. We have requested in the past few years $2.29
million to continue the grant program authorized under NAGPRA.
We anticipate that for 1996, and we're very hopeful that we'll re-
ceive that appropriation.

Senator Inouye. Would $2.3 be sufficient, although you re-
quested nearly $30 million?

Ms. Stevenson. That's the Administration's request, Senator.

Senator Inouye. Are you suggesting that $27 million worth of
grant requests were inappropriate?

Ms. Stevenson. No, sir; not under any circumstances. These
times of fiscal restraint make it very, very difficult for us to meet
these requests, and

Senator Inouye. And these are

Ms. STEVENSON[continuing]. Of course, any additional funds are
welcome.

Senator Inouye. These are appropriate?

Ms. Stevenson. They are very appropriate requests.

Senator Inouye. So if funds were available, you would be re-
questing $30 million?

Ms. Stevenson. If funds were available, we would be requesting
$30 million.

Senator Inouye. Is this matter given high priority in your agen-
cy?

Ms. Stevenson. Yes, sir; it is. I think it is worthwhile noting
that, while other programs have received rather significant cuts,

this has stayed at the level and the 1995 and 1996 budget had re-
mained stable, which I think one couldn't say about many of the
other programs.

Senator Inouye. Ms. Stevenson, as you are aware, most of the
tribes are recognized by the Federal Government and some are rec-
ognized by States. Do you include Indian tribes that are recognized
by States in which they are located but which may not be federally-
recognized as Native Americans?

Ms. STEVENSON. The definition the we have chosen to use is con-
sistent with the usage developed in connection with the American
Indian Self-Determination Act, which limits standing to Indian
tribes and Alaska Native villages and corporations recognized as el-
igible for the special programs and services provided by the Bureau
of Indian Affairs [BIA] because of their status as Indians. We chose
this definition for consistency within the Department of the Inte-
rior.

Senator Inouye. Do you not believe that these are men and
women who lived on this land many centuries ago and they are In-
dians, no matter whether we recognize them or the States recog-
nize them?

Ms. Stevenson. I believe that personally, sir. I think the Depart-
ment of the Interior has to have standards which are fair and
equally applied to all the people with whom we work, and that's
why we chose this definition.

Senator Inouye. On the matter of extending respect for those
who have departed, do you not think standards should be univer-
sal? Or would the Department object if an amendment is provided
that would cover the State-recognized Indian tribes?

Ms. Stevenson. I think we'd have to think pretty seriously about
that, and we'd be happy to get back to you on that very serious
question.

Senator Inouye. Thank you. Do you believe that it would be
helpful or advisable for the Congress to amend this act to authorize
legal actions to be initiated by those who may qualify to stand in
a guardianship capacity for human remains in order that the Na-
tive American human remains are not desecrated in any inventory
process or in any other aspect of the repatriation process? This is
in response to the recent decision that I cited.

Ms. Stevenson. You raise some very serious issues here, Sen-
ator, and I wouldn't want to answer quickly and not have us have
a chance to think about them very seriously and make some sug-
gestions to you with some thought.

Senator Inouye. Will you have your counsel look at this and re-
spond to us?

Ms. Stevenson. Yes, sir; we will. Thank you very much.

Senator Inouye. And the same thing about whether information
about the remains should be exempted from the public disclosure
under the Freedom of Information Act.

Ms. Stevenson. We'll provide a thoughtful response to you, sir.

[Information provided in Ms. Stevenson's prepared statement
which appears in appendix.]

Senator Inouye. In your testimony you stated that in the past
2 years 337 grant proposals had been submitted and 83 were fund-

ed. Of the 83 grant awards, how many went to tribes in fiscal year

1994 and 1995?

Ms. Stevenson. Roughly one-half went to tribes and one-half
went to museums. We can provide a breakdown of all of those
grant awards if you wish.

Senator Inouye. I believe that would be most helpful.

Ms. Stevenson. Yes, sir.

[Information follows:!

In fiscal year 1994, 16 grants were provided for Indian tribes, and in fiscal year

1995 the number of grants to Indian tribes was 22, for a total of 38 grants. In addi-
tion, many of the grants to museums, for compliance with the NAGPRA inventory
requirement, included funds to provide for members of Indian tribes to travel to mu-
seums for consultations or otherwise supported Indian tribe activities related to
NAGPRA.

Senator Inouye. The act requires that museums and Federal
agencies are required to conduct inventories and submit summaries
of their collections. You also mentioned in your testimony that
there have been a number of museums that have applied for exten-
sions. How many museums have requested and applied for exten-
sions?

Ms. Stevenson. As you know, the inventories are required to be
done by November 16, but they don't need to be — the tribes don't
need to be notified until May 16. So we anticipate, although we've
received 459 inventories, that some will still be coming in.

Up to now, 73 museums have appealed to the Secretary for ex-
tension to the deadline. Most anticipate that they'll be done by No-
vember 16, 1996, and about 21 museums have asked for longer pe-
riods of time.

We are now evaluating those appeals and will make rec-
ommendations to the Secretary on ones that are appropriate for ex-
tensions.

Senator Inouye. So, in your view, it is moving along according
to schedule?

Ms. Stevenson. It's moving along, sir. Yes, sir.

Senator Inouye. It is my understanding that it was Congress' in-
tent to encourage repatriation and not to delay or limit the author-
ity of a museum to repatriation. However, it has been brought to
my attention that section 10.10.B.2 of the regulations would pre-
vent any repatriation of human remains and associated funerary
objects until after a museum finally completes its inventory. Is that
correct?

Ms. Stevenson. Apparently not, sir. If I may, I'd introduce Dr.
Francis McManamon, the departmental consulting archaeologist.
Frank, would you join me?

Frank is the lead agent for the implementation of this act within
the Department.

Mr. McManamon. Thank you, Mr. Chairman. It is a pleasure to
be here.

We have consistently encouraged both agencies and museums to
complete those portions of inventories for their collections where
there aren't questions of cultural affiliation or definition or things
like that, and to undertake repatriation as soon as possible on
those.

I would have to look at the specific section, which I haven't done
since you asked the question, but that should not be the reading

of that section, and if it appears to be, we can certainly redouble
our efforts to emphasize that that's not the case.

Senator Inouye. We would appreciate a response on this.

Mr. McManamon. Well be happy to provide it.

[Information provided in Ms. Stevenson's prepared statement
which appears in appendix.]

Senator Inouye. You have indicated that the Department of the
Interior is currently considering proposed regulations to implement
the civil penalty provisions under section 10 regarding non-compli-
ance with the act. When do you anticipate that these proposed reg-
ulations will be published?

Ms. Stevenson. Section 9 of the statute authorized the Secretary
to assess civil penalties. Regulations required to ensure due process
have been developed in consultation with the Review Committee.
The Department is considering issuing these procedures as an in-
terim rule that would effect immediately to guard against muse-
ums avoiding an assessment because the statute of limitations ex-
pired.

For example, the Office of the Solicitor has estimated that one
civil penalty case from initial investigation to final appeal could
cost the Department $100,000 in staff time and resources, so we're
anxious to get these done as quickly as possible.

Senator Inouye. How will your Department, the Department of
the Interior, work with Indians tribes to determine the disposition
and treatment of unidentified human remains? Are there any pro-
posals presently under consideration?

Ms. Stevenson. May I ask Dr. McManamon to answer?

Senator Inouye. Please.

Mr. McManamon. Thank you. The Review Committee, Mr.
Chairman, has considered this particular question of how to treat
culturally unidentifiable Native American human remains, and
they are considering a set of recommendations that they will even-
tually be making to the Secretary of the Interior about how best
to handle the treatment of this particular category of remains.

I think the Review Committee representatives who are here are
probably going to talk about this in some more detail.

We have circulated an initial draft of those recommendations,
and we received something like 120 written responses to it, which
the Review Committee considered at their last meeting in Anchor-
age. The plan now is for them to consider a second draft of those
recommendations and to have further discussions on it at their
next meeting.

So the issue is seen as a serious one, one that needs consider-
ation, and those considerations are being taken into account at this
time.

Senator Inouye. I can assure you that the committee is pleased
to hear that.

Thank you very much.

Senator Dorgan.

STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM

NORTH DAKOTA

Senator Dorgan. Mr. Chairman, thank you very much.

I have two other hearings that are now in progress in other com-
mittees, so I am unable to stay for the entire proceedings today.

When I was a Member of the House of Representatives I was in-
volved in the enactment of the legislation that creates the cir-
cumstances that brings us to this hearing today. And I felt then
and feel now that the circumstances under which both public sector
and private sector institutions have warehoused, in effect, human
remains and other objects — especially the human remains of Native
Americans — in come cases for well over a century, that it really
called for a process by which those remains could be given back to
the tribes and the tribes could give them the proper respect and
burial that they choose to do.

When we got involved in this originally in passing a piece of leg-
islation, we did not feel that this was rocket science, especially
when you have institutions that have had these remains for nearly
a century, and then we have people say to us, "But we need time
to study them." You take a look at a century of warehousing, and
you figure if there is any study to have been done, you'd have
thought most of that study would be completed and that this could
move forward then expeditiously after the law was passed.

There is a substantial amount of frustration that we will hear
today from witnesses about the general pace of compliance with
this law. Some of it may be that enough resources aren't available.
I don't know that. Some of it may just be foot-dragging. Some of
it may simply be the bureaucratic system that doesn't move very
fast.

But some of the frustration I think is certainly meritorious, from
meeting deadlines to making appointments on time, publishing reg-
ulations on time.

Tribal Chairperson Jesse Taken Alive, from the Standing Rock
Sioux Tribe, will be testifying today, and he's accompanied by Tim
Mentz, who is a representative on the NAGPRA Review Board, and
I have reviewed Chairman Taken Alive's testimony, and he, I
think, will testify to what a lot of others feel about the frustration
of this process.

We want to get this moving and do it in the right way. And espe-
cially there is going to be frustration expressed about the lack of
input by tribes in the development of regulations, and our anticipa-
tion in the spirit of this legislation was that we would have full
input and cooperation and a spirit of partnership along the way,
and I think some of the testimony that you will hear today, Mr.
Chairman, will demonstrate that a lot of folks feel that there has
not been adequate cooperation.

So this hearing is, I think, a positive step. I think Chairman
Taken Alive will probably echo that, as well. This is a positive step
forward because we need finally to get these issues resolved.

These issues related to the State Historical Society and Museum
in North Dakota that has human remains, the Smithsonian that
has human remains. And when I got involved in looking at this I
concluded what I think you concluded and many others have —
these ought to be returned, and they ought to be returned on an
expedited basis in a reasonable way, and I hope this hearing now
begins to unsnarl some of the knots that have occurred in the bu-
reaucratic process by which we can finally get that done.

So, Mr. Chairman, thank you very much for holding these hear-
ings. I welcome Chairman Taken Alive and my friend, Mr Mentz
from the Standing Rocks.

[Prepared statement of Senator Dorgan appears in appendix.]

Senator Inouye. Thank you very much.

May I now call upon the chairperson of the NAGPRA Review
Committee, Ms. Tessie Naranjo.

STATEMENT OF TE SSIE NARANJO, CHAIRPERSON, NAGPRA
REVIEW COMMITTEE, SANTA CLARA PUEBLO, ESPANOLA, NM

MS. Naranjo. Thank you, Chairman Inouye.

I appreciate the opportunity to offer testimony as a member and
chairperson of the National Review Committee for NAGPRA.

The individuals selected in the spring of 1992 to serve as Review
Committee members have worked for 4 years, meeting at least
twice each year, working on various aspects of NAGPRA, such as
refining the regulations which implement the statute. These regu-
lations have just been published in the "Federal Register."

Other activities of the Review Committee include consideration of
five dispute cases, oral testimony from 93 individuals during 1992
to 1994, many of whom represented Indians tribes or are of Indians
descent.

At our last meeting in Anchorage, AK, October 16-18 of this
year, we discussed the 120 written comments received on our draft
recommendations regarding the disposition of culturally unidentifi-
able human remains and associated funerary objects.

We have experienced frustrations over a number of issues. These
frustrations and concerns became the recommendations in our
1993/1994 report to Congress, and I'll summarize the recommenda-
tions excluding the recommendation that the regulations be ap-
proved as soon as possible because they, in fact, have just been
published.

No. 1, that Congress clarify the meaning of Indian tribe within
NAGPRA in order to permit Native American groups not presently
recognized by BIA, the BIA, to repatriate their human remains, fu-
nerary objects, sacred objects, or objects of cultural patrimony.

No. 2, that Congress appropriate at least $10 million for fiscal
year 1996 to help Indians tribes, Native Hawaiian organizations,
museums, and universities in complying with NAGPRA directives.

No. 3, that Congress take steps to assure that the Smithsonian
complies with all NAGPRA requirements.

No. 4, that Congress consider legislation to protect Native Amer-
ican and Native Hawaiian graves located on State or private lands
from grave-robbing and other kinds of destruction.

Now I wish to make comments with regard to funding. For fiscal
year 1994 and fiscal year 1995, the total number of NAGPRA
grants was under $5 million, and the total request from tribes and
museums was $30 million. The number of grant requests will in-
crease with this coming fiscal year 1996 grant applications. We
need increased funding for the grant program.

Increased funding is also needed for the costs involved in "Fed-
eral Register" notices due to the increased number of inventory no-
tices of human remains and associated funerary objects.

One of the effects will be the inundation of work related to the
documentation of these inventories of human remains by the
NAGPRA administrative staff and the Review Committee.

We expect that, as the inventory notices increase, the number of
disputes will rise. Disputes always prolong conflicts and involve the
time of the limited NAGPRA staff. It also requires more consider-
ation of dispute hearings by the Review Committee.

Additionally, more funding is needed by the NAGPRA staff to im-
plement the civil penalties section currently being reviewed by the
Department. This section deals with those individuals and institu-
tions who are in noncompliance. Investigative work is a crucial
process in determining noncompliance.

Our recommendation in our 1993/1994 report to Congress was
that it appropriate $10 million in fiscal year 1996 to continue to
implement the Native American Graves Protection and Repatri-
ation Act. This amount is absolutely essential if we are to effec-
tively carry out the intent of NAGPRA.

Last, Mr. Chairman, I want to make mention that the Keepers
of the Treasures, a national organization promoting cultural pres-
ervation of tribes, is in support of the efforts of the NAGPRA staff
and the Review Committee and supports our request for $10 mil-
lion for fiscal year 1996.

Thank you.

[Prepared statement of Ms. Naranjo appears in appendix.]

Senator INOUYE. I thank you very much, Ms. Naranjo.

May I call upon Senator Campbell. Would you like to make an
opening statement?

Senator Campbell. Thank you, Mr. Chairman. I'd just like to ask
unanimous consent to introduce a written statement for the record.

Senator Inouye. Without objection.

[Prepared statement of Senator Campbell appears in appendix.]

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.
SENATOR FROM COLORADO

Senator Campbell. We've got three bills being marked up in En-
ergy, so I'm only going to stay a few moments, but, as a person who
has been vitally interested in that, in fact, even before this legisla-
tion was dealt with in 1990, going back to our days when we
worked on the Museum of the American Indian bill and modified
that language to start a process by which we could return the re-
mains that were housed over at a Smithsonian back to tribal
groups that could claim them, I've been just as interested in this
as you have and many Indian people in this country.

Certainly, I'm somewhat concerned, too, at the slow progress that
Interior has made in implementing NAGPRA, but I guess that part
of that's our fault, because in times of budgetary constraints we
probably haven't appropriated enough money to let them do the
job.

I apologize for not being here to the Indian people that have al-
ready testified, and the Park Service, too, but I want to assure you,
Mr. Chairman, that I look forward to working with you to try to
make sure that this act is completely implemented, and at the ear-
liest convenience.

Thank you.

Senator Inouye. I thank you very much, and I can assure you
that we are singing from the same hymnal.

Ms. Naranio, as the primary sponsor of this bill, I can assure you
that it was the intent of this committee to include all Indian tribes
within the scope of the act's protection. I note that the official posi-
tion of the definition of Native American is just for those federally-
recognized. If it requires amendment, I will propose such an
amendment.

Ms. Naranjo, do you believe that the human remains, funerary
objects, sacred objects, or objects of cultural patrimony of non-feder-
ally-recognized tribes should receive the protection of this act?

Ms. Naranjo. I do.

Senator Inouye. You have made several recommendations. One
of them states that the Congress take steps to assure that the
Smithsonian Institution complies with all requirements of the act.
Are you referring to the National Museum of the American Indian
within the Smithsonian, or other museums within the Smithsonian
complex?

Ms. Naranjo. The Museum of Natural History is one of the mu-
seums that I'm referring to, one of the sections within the Smithso-
nian Museum that I'm referring to.

Senator Inouye. You are not referring to the American Indian
Museum?

Ms. Naranjo. I am also referring to the American Indian Mu-
seum.

Senator Inouye. Would it be possible for you to supply us with
some further detailed information as to how you believe that these
institutions are not complying with all the requirements of the act
so I can personally call upon them for their responses?

Ms. Naranjo. Mr. Chairman, what I'd like to do is ask Mr. Dan
Monroe, also on the Review Committee, to respond to that ques-
tion.

Senator Inouye. Fine.

Mr. Monroe. Mr. Chairman, the committee has had some con-
cern regarding this issue, as has the museum community. At the
time the act was passed — you may remember we discussed this to-
gether — we expected that the Smithsonian would adhere to all the
provisions of NAGPRA.

Very briefly, the situation is that the Smithsonian is currently
acting under different legislation, and that the Smithsonian has
made ample investment and considerable progress, which I think
we should note, in carrying out the general intent of NAGPRA.

However, the fact is that the Smithsonian Institutions, the sepa-
rate museums, are operating under different policies. The Museum
of the American Indian is operating under a "more liberal" policy
than NAGPRA. The rest of the Smithsonian Institution is operat-
ing under somewhat different policies.

First of all, they have not filed inventories with tribes nor do
they have to do so. They have not filed summaries, nor do they
have to. And the process, very briefly, by which Native American
people would interact with the Smithsonian does not mirror
NAGPRA in a number of regards.

The committee's point is simply that the Smithsonian is the na-
tional museum. We again wish to recognize the very substantial in-

vestment that the Smithsonian has made to comply with the gen-
eral intent of NAGPRA, but it has been our feeling all along that,
as the national museum, it is reasonable that the Smithsonian, ei-
ther by policy or by congressional action, comply with NAGPRA.

That will require — just my final point — that some steps be taken
retroactively because the Smithsonian is not in compliance at this
point.

Senator Inouye. I can assure you at this juncture that you have
correctly stated that, at the time of the passage of this act, the
Smithsonian Institution prevailed upon the committee not to in-
clude the full institution in the act until such time as an overall
institutional policy could be developed which might reconcile the
differences between provisions addressing repatriation and the Na-
tive American Museum and other Smithsonian museums.

We, in the Congress, relied upon the representations of the
Smithsonian at that time that recommendations for special legisla-
tion closely paralleling the provisions of the NAGPRA would be
forthcoming.

I am certain you will recall that at that time other museums and
scientific institutions across the country were adamantly opposed
to the exclusion of the Smithsonian— "Why pick on us?"— and that
the museums and scientific institutions agreed to accept the exclu-
sion onlv on the condition that special legislation would subse-
quently be enacted by the Congress.

I agree with you that, in this critically important policy area, the
law should be applied evenly and without exception. So, accord-
ingly, I will be calling upon the Secretary of the Institution to work
with the committee to develop such legislation that we promised
that would apply specifically to the Smithsonian and which would
extend the coverage to that institution, so I give you my pledge on
that, sir.
Mr. Monroe. Thank you.

Senator Inouye. Ms. Naranjo, I am certain you recall that in my
opening remarks I cited certain rulings of the recent decision in the
Federal district court in Hawaii, and I would like to ask some of
the questions that I asked Ms. Stevenson.

Do you believe it would be helpful or advisable for the Congress
to amend this act to authorize legal actions to be initiated by those
who may qualify to stand in a guardianship capacity for human re-
mains so that Native American human remains are not desecrated?
Ms. Naranjo. Yes.

Senator Inouye. Do you believe that information about Native
American human remains should be exempted from public disclo-
sure under the Freedom of Information Act? I have asked this be-
cause concern has been expressed by several tribal leaders that
these remains should not be further desecrated, and that is why I
am asking you this question. Or would you like to think about this?
Ms. Naranjo. Thank you.

Senator Inouye. Do you believe that there was adequate con-
sultation with Indian tribes during the development of the final
regulations to implement the act?

Ms. Naranjo. Mr. Chairman, I do. I do because we have had at
least 10 meetings now in the past 4 years, and what we have tried
to do, as Review Committee members, is to go to as many tribal

communities as we could. That's one example of our trying to reach
out to all the tribal communities, understanding and respecting
that tribal people do not always have the funds to travel. Most re-
cently, we were in Anchorage, Alaska, area for that reason.

Also, as we had drafts of the regulations, they were published in
the "Federal Register," and there was that opportunity for tribal
people to respond to the regulations.

Also, during our Review Committee meetings, there were a num-
ber of testimonies, and we purposely afforded time for tribal people
to take that opportunity to provide testimony on different matters.

So yes, I do, Mr. Chairman.

Senator Inouye. Was your committee involved with the develop-
ment of the criteria for time extensions during the inventory proc-
ess?

Ms. Naranjo. No; we were not.

Senator Inouye. Are you satisfied with the time extensions?

Ms. Naranjo. Mr. Chairman, I know that we're still in discus-
sion on that. So, as far as the deadline is concerned, I think there
needs to be some sort of reasonable deadline. For example, if a par-
ticular museum asks for 27 years, that's outrageous, as far as I can
tell.

Senator Inouye. Well, I thank you very much.

I would like to advise the witnesses that the committee will be
submitting additional questions. Some are very technical, so we'd
like to give you some time to review them and respond to them.

Now may I call upon Mr. Monroe, a member of the NAGPRA Re-
view Committee.

Mr. Monroe. Mr. Chairman, it is a privilege to testify here.

Senator Inouye. Excuse me.

Mr. Monroe. Yes.

Senator Inouye. Senator Campbell, did you have any questions?

Senator Campbell. Mr. Chairman, no, I don't have any ques-
tions, but I guess maybe to Ms. Naranjo, in particular, I'd just like
to pose a rhetorical comment, I guess.

We get so bogged down in these committees about policy and
legal action and authorizing legislation and regulation and how to
implement it and reviewing things that I often wonder what the
heck ever happened to sensitivity and fairness?

I don't think there is a person in this country that wouldn't un-
derstand what Indian people went through if it was their grand-
mothers or their grandfathers when you re talking about it. But
somehow, when its not Indian grandmothers or grandfathers, we
get all bogged down in this, frankly, long-winded, rhetorical debate.

I'm convinced that if agencies were really interested in getting
something done, they would be up here pushing us as hard as a
Indian people are pushing us, and we deserve to be pushed.

I thought I'd just throw that out to let you know, Ms. Naranjo,
that some of us are iust as disturbed as you are about the lack of
emphasis on this within the agencies, and the lack of it being a pri-
ority issue to them, too.

I want you to not leave here without knowing that Senator
Inouye, and I'm sure Senator McCain and most of the people on
this committee, including me, are interested in trying to move the
process forward at all speed.

Ms. Naranjo. Thank you for that comment.

Senator Inouye. I can assure you that Senator Campbell speaks
for the committee.

I recall, when we first initiated discussions on this matter nearly
a decade ago, I made an observation that if the skulls and human
remains in custody of the Smithsonian were Irish skulls or French
skulls or Chinese Skulls, you would have had an avalanche of criti-
cism and concern and objection. But all these years thousands have
somehow been kept in little green boxes there and they are still

there.

Senator Campbell. Mr. Chairman, if I might interject, that s ex-
actly the problem. With everybody else in this country we talk
about human remains and understand the reaction, but when you
talk about Indians, they somehow become artifacts.

Senator Inouye. Yes.

Senator Campbell. They make a transition, like old pots and
baskets in a glass case instead of the human tragedy that has gone
along with how they were collected in the first place.

Thank you.

Senator Inouye. We do not see any human remains of pilgrims
in museums, or funerary objects, or sacred objects of pilgrims in
museums, but we find many Native American. So we agree with
you, and we, too, are rather frustrated, but we are here in an insti-
tution that's concerned about laws, and we would like to make cer-
tain that when we do establish this it will be established in such
a manner that in future generations no one will be able to chal-
lenge or question the intent of Congress or the intent of this Nation
when we established this law.

So, even with even with the frustrations, we are willing to hang
on for a little while longer. But, as Senator Campbell has very elo-
quently indicated, there is a limit.

Mr. Monroe, please proceed.

STATEMENT OF DAN MONROE, NAGPRA REVIEW COMMITTEE,
PEABODY ESSEX MUSEUM, SALEM, MA

Mr. Monroe. Mr. Chairman, members of the committee, I'm Dan
Monroe, director of the Peabody Essex Museum in Salem, Massa-
chusetts, member of the Review Committee, and immediate past
president of the American Association of Museums.

While I think all of us feel frustration at a variety of things in-
volving implementation of this act, I'd like to take the opportunity
to point out that a substantial amount of progress has been made
and that, on the whole, we have seen both tribes and museums act-
ing to implement this act in good faith and good spirit.

I think that the ruling in Hawaii is disturbing on a number of
counts, and I'm sure the Review Committee would appreciate the
opportunity to respond specifically.

I'd like to just comment very briefly, and then I'd be happy to
answer questions.

No. 1, pointing out that the actions that have been taken to date
for implementation have, in fact, resulted in a number of repatri-
ations and that we hear in testimony around the country that this
has been extremely beneficial to Native American people in terms

of restoring a sense of individual and tribal, cultural, and religious
integrity.

It has also been helpful, where sacred objects have been re-
turned, to the continuation or restoration of Native American reli-
gious practices.

And a final benefit that I would like to point out is that there
have been established many instances of partnership, new partner-
ship between museums and Native American tribes and people
that have been very useful to understanding collections and also to
be able to present an accurate and fairer picture of the Native
American experience in this Nation.

I'd like to comment very briefly on the issue of promulgation of
regulations. There is frustration on two sides: No. 1, that there
wasn't enough input, and No. 2, that it has taken 5 years to get
any regulations out.

The committee has made it clear that we feel that it is critically
important there be ample involvement and input from all parties.
It is also important that these regulations move forward in a time-
ly manner, and we'd just like to say at this point that we'd like to
see the remaining sections acted upon in a timely manner.

I would just second the point that Ms. Naranjo made that we
have heard a great deal of testimony, and at some point you have
to draw the line and move forward.

The issue of financial assistance I want to spend a little bit of
time on, and I want to formally correct my written testimony,
which is erroneous and you have my apology for that.

Part of the reason that it has been difficult to implement this act
is that it is very costly. The original estimates were $40 million.
I can tell you that those estimates are just flat-out wrong, not in-
cluding Federal agencies, and that tribes and museums neither are
in a position to support costs that are easily well over $50 million,
and that's very conservative.

I just want to end by saying that the request— and you're going
to hear it again— for $10 million a year is not out of line. We un-
derstand the Department of the Interior's position on this, but the
committee has made it clear in the past and we'd like to make it
clear again that $2 million a year is not sufficient for either tribes
or museums, particularly now that inventories have been filed and
there needs to be much more dialog.

Tribes are, as you know, getting cut very hard on the funding
that they are receiving, and they are already in difficult straits fi-
nancially, so I just want to underscore that the issue of Federal
support, which has been, at best, less than 5 percent of the total
cost here, is an issue for successful implementation in the future.

The committee has dealt with this issue of definition of tribe. I
just want to go on the record — and we've done it in our written tes-
timony—that we've urged the Secretary of the Interior to take a
more liberal definition that would recognize State tribes. Museums
can't make decisions about who tribes are, but certainly it's pos-
sible, we believe, to broaden that definition, and we'd like to see
that done one way or the other.

There are many tribes who are not federally-recognized. I believe
there are 45 seeking Federal recognition right now, many of which
had recognition in the past.

We discussed the issue of the Smithsonian Institution, and I
won't touch on that.

The remaining issue the committee faces, in addition to working
with the Secretary to get the remaining regulations out in a timely
manner, is the question of unidentified remains. It is a difficult
and, frankly, contentious issue. We're working diligently on it, and
we've received a great deal of testimony. I'm sure that you will be
hearing more about this matter in the future.

I would just like to close by recognizing another point with re-
spect to the Department of the Interior. The leadership that Dr.
McManamon and his small staff have exercised here, while it's a
tough job, I think warrants recognition. They've done a good job
moving this along within the context of a very big bureaucracy that
frustrates all of us.

I'd just like to close by saying two things, again. While there are
many issues and problems and concerns regarding this act — and
you've heard some, and you'll hear some more — I think we should
keep in mind that we're making advance, and that the relationship
between Native Americans and museums, universities, and Federal
agencies today is very different than it was 5 years ago.

I'd like to personally credit Senator Inouye with the leadership
you exercised in bringing this about, as well as others.

Finally, I'd conclude by saying that the financial issue here — and
you hear this constantly, but we're just telling you the truth — is a
major factor, and the current amount of money budgeted in the De-
partment of the Interior for grants is simply not sufficient.
Thank you.

[Prepared statement of Mr. Monroe appears in appendix.]
Senator Inouye. Thank you, Mr. Monroe.

Then would you suggest that the $10 million that your Review
Committee is recommending is not sufficient either?

Mr. Monroe. We believe that the $10 million is necessary we un-
derstand the budget climate, we understand the need to balance
the budget. We also feel strongly that there is a moral responsibil-
ity here, and that we would be nappy to see this amount increased
to $10 million. It would be great if it were more, but $10 million
is a very reasonable request.

Again, museums have borne a substantial burden, as is rightly
the case and as it should be, and have carried this out in good
faith. Tribes now need money to travel, to do the consultation, and
museums need to work with them to do that.

It can't be done effectively with the amount of money available,
so $10 million would be very, very helpful.

Senator Inouye. Ms. Naranjo and you have both testified as to
the problems associated with the disposition of unidentified and
unclaimed human remains and funerary objects. It might be well
if I review for you very briefly one of the reasons why I got so deep-
ly involved in this.

When I became chairman of the committee, one of the first
things that I learned was that in the custody of the Smithsonian
Institution were 14,500 skulls and human remains of Native Amer-
icans, Indians, plus 4,000 human remains of Alaska Natives and
Aleuts. Unfortunately, most of them were not collected by profes-
sionals — archaeologists and such — but most of them were collected

23-074 96-2

by soldiers who were operating under the direction of the Army
surgeon general, who requested that skulls be sent to him so that
he could conduct studies on the cranial capacity of Native Ameri-
cans to determine their intelligence.

Well, the soldiers got very enthusiastic about it, and they began
collecting and digging up graves all over the countryside, and the
only thing we know is that they came from the corridor area, or
they came from the Oklahoma area. We have no association with
specific tribes or specific areas, just a large area.

Now, having cited that, and then the case that has just con-
cluded in Hawaii, I presume you would favor an amendment that
would authorize a guardianship capacity for appropriate entities so
that we could provide protection for these remains.

Mr. Monroe. The Review Committee has taken a number of ap-
proaches, and we did not have any information on the Hawaii case.
I think that it is fair to state — and Tessie, you could add — that
there is great concern about the issue of unidentified remains. It
is very important to try to figure out some mechanisms — not over
the next 5 years, but in a reasonable time — by which remains can
be returned.

And I think it's also fair to state that the issue of ancient re-
mains is a contentious one.

We would like to see — and I think I can speak for the museum
community, as well — returns of Native American remains that
ought to be returned, returned expeditiously. We're working to
achieve that. The general principles you're talking about Senator
are not in disagreement witn the museum community. It's just that
it's a difficult issue.

We don't, for example, wish to see remains returned to the wrong
parties. There are groups like those in South and North Dakota
with the Sioux, from whom you'll hear with later, that have joined
together to help facilitate return of a number of remains where it
may not be possible to determine whether they were precisely Og-
lala Sioux or Brule, but rather clearly there are Sioux and they
should be returned.

I'm confident that we'll address these issues working on them.

Senator Inouye. I asked a question about the exemption from
public disclosure under the Freedom of Information Act. Do you
think that information about Native American human remains
should be kept secret?

Mr. Monroe. Well, there are a number of concerns that the com-
mittee has discussed with respect to this. Again, we're taken aback,
I think, by the rulings in Hawaii a number of ways.

There are concerns in making information public about Native
American human remains because, if you do then you're just basi-
cally publicly advertising where it may be possible for pot hunters
and grave diggers to disturb more remains. That's clearly a major
concern.

Second, there is obviously — and as there should be — a great deal
of sensitivity about additional scientific study and about certain
kinds of information being broadly disseminated.

The committee can't respond to the Hawaii case because we
didn't know about it, but I think it's fair to say that it's a concern
to us that information about the location of gravesites would be

available to anyone who wants it. It certainly goes against some of
the basic tenets of this law.

Senator Inouye. As to your other concern of including all Indian
tribes, whether they are recognized by BIA or not, I can assure you
we concur with that, because we know that most of the tribes that
have not received Federal recognition are found in California at
this time, and these tribes were recognized at one time. They en-
tered into treaties with the United States, but we decided to dis-
regard these treaties and therefore made them unrecognized, so we
would try to correct history, if we can.

Mr. Monroe. Thank you very much. We'd appreciate it. I know
the Review Committee would appreciate that, and certainly those
unrecognized tribes with whom we've dealt would deeply appreciate
it.

Senator Inouye. Because I think that we have the authority,
Congress does have the authority, and that we should clearly enact
a statute to provide authority for repatriation of all human re-
mains.

Once again, I would like to say that, as Senator Dorgan and Sen-
ator Campbell have indicated, they have had 200 years to study
and make scientific inquiry about these skeletal remains. Maybe
the time has come. I do not think they need 200 more years to do
that.

Mr. Monroe, you also somehow expressed that you were not too
happy with the publication of the final regulations in the "Federal
Register." Are you supportive or critical? I could not quite get it.

Mr. Monroe. I'll be clear. The Review Committee has been con-
cerned at the extended time it has taken to publish regulations.

We know that by not having regulations published in 5 years, al-
most to the day, after this act was passed, it has caused confusion,
unnecessary expense, and it has made it more difficult, on the part
of both tribes, museums, and universities and Federal agencies.

We would have been happier to have seen regulation passed ex-
peditiously. We think, just to wrap it up, that there ought to be
ample opportunity, and we've done that within the resources avail-
able to the committee and to the particular department under
Frank McManamon, to make it possible for as many people as we
can, representing everyone affected, to participate in and provide
input to regulations, on the one hand.

On the other hand, we think that it is important and reasonable
that to get this work done in a more timely manner. That was my
point.

Senator Inouye. Before I call upon Senator Campbell for ques-
tions, I would like to thank all of you on the committee for the
many hours and many days of time you have spent, and for the
contributions you have made toward implementation of this act.

I can imagine the frustration that you have experienced, but I
hope that among the frustrations is not the feeling that you have
no support here. I can assure you that you have a lot of support
here. We are just waiting for our marching orders. That is all. And
when we get them we will proceed.

Once again, I would like to request from you your views on this
recent Federal district court of Hawaii decision, because it will im-
pact upon your work, and if you believe that some of these provi-

sions should be clarified or cured by legislation, if you would tell
us so we'd be very happy to act upon it.

Senator Campbell.

Senator Campbell. Thank you, Mr. Chairman.

Mr. Monroe, are you a veteran, by any chance?

Mr. Monroe. No.

Senator Campbell. Well, Senator Inouye, as you know, is a vet-
eran, as I am. Senator Inouye is a very highly-decorated World
War II veteran, and I was in the one after that in Korea.

Let me just put this in a context maybe that any veteran in this
room could understand.

If you combine all of the people who are not accounted for, Amer-
icans of World War II, of Korea, and Vietnam, there are about
50,000. There are about 40,000 from World War II, roughly 8,000
from Korean, and about 2,000 from Vietnam.

Although the World War II veterans and the Korean veterans
haven't been quite as vocal, I know that if you follow the news-
papers you know that the Vietnam veterans have been very vocal
and the families have been very vocal across this Nation about re-
turning the remains of those 2,000 missing. So we have a total of
about 50,000.

According to CBO, the number of skeletal remains that haven't
been returned to Indians may number 200,000, maybe four times
the amount of all American missing in all the wars since World
War II.

I want to just put that in a sort of balance so you may be able
to understand the magnitude of what it means to American Indi-
ans. Certainly those remains are just as important to them as any
American's missing remains are of their loved ones in any of those
wars.

You talked about the Native American experience. It is a very
proud, dignified, courageous experience in the history of this coun-
try. But I often think sometimes if we could have more department
heads go out and live that Native American experience, on-reserva-
tion experience, they'd understand, I think, better what Indian peo-
ple feel they are up against, because it is also an experience of pov-
erty, of sometimes as much as 70 or 80 percent unemployment, of
sickness, of lack of sanitation or good housing, of living on commod-
ities, of all kinds of social problems.

If you magnify by five every problem that America has, magnify
it by five and you have part of the Native American experience on
a daily basis.

One of the few things they really hang on to is traditions, cul-
ture, and the knowledge and belief that the spirit of the old ones,
the spirit of their ancestors are still with them to help guide them
through troubled times.

I don't know of any culture that puts more emphasis on that,
more belief that they're being guided and helped by the ancient
ones than American Indians.

It seems to be a cultural experience for most Americans, when
your parents die or your grandparents die, you go out there once
a year and you put flowers on a grave and you remember them
once a week or once a month or something in your prayers, and lit-
tle by little they sort of fade out of your memory, but that's not the

Native American experience. They think about it all the time. They
just absolutely think about it all the time.

People that we would call "traditionals," they include it in their
prayers daily. Daily in the morning, before they do anything else,
they include it in their prayers.

But I wanted to just point that out that sometimes when we talk
about other experiences in America we're on different wavelengths.
We try to apply the logic of living in a certain kind of a lifestyle
to what the Native American experience might be, based on a cou-
ple of friends we've seen or something we read or a movie we saw
or something of that nature.

But it is really a driving force, this concern about elders and an-
cient ones and the people that they believe the remains should go
back to the earth or be returned.

But I wanted to point that out to you, just to sort of put it in
kind of a context about all of the rhetoric, all the debate, all the
dialogue, all the anger we're getting on the missing servicemen and
how it pales by virtual numbers with what Indians go through.

Mr. Monroe. Senator, I appreciate that point, and if you will
note in my written testimony, I made precisely the point you just
made with respect to Vietnam veterans.

I'd just add one other thing, I also pointed out in my written tes-
timony: This country has a moral responsibility to address this
issue and that this small amount of money, while it has been very
deeply appreciated, that has been invested so far on the part of the
Federal Government needs to be increased for the very reasons
that you just pointed out.

Senator Campbell. And I appreciate the fact. I know there has
been some progress made, probably more in the last 8 or 10 years,
or at least since the Smithsonian bill passed, and probably the last
three or four decades before that, so I don't mean to imply that
nothing's being done.

Mr. Monroe. I understand.

Senator Campbell. I just get frustrated that we're not moving as
fast as we ought to, but thank you.

Mr. Monroe. I understand your point.

Senator Campbell. Thank you, Mr. Chairman.

Senator Inouye. Thank you very much.

I would like to thank the panel: Ms. Stevenson, Ms. Naranjo, Mr.
Monroe, thank you very much.

Mr. Monroe. Thank you.

Senator Inouye. Before calling upon the last panel, I would like
to advise all of you that this committee has requested information
from the Department of Justice on the status of implementation of
section 4 of the act, which provides for criminal penalties for viola-
tions of the act and for illegal trafficking of sacred objects. That has
been a major problem in this area, and I can assure you that the
written response we will receive from the department will be made
part of the record so that all of us will be able to study that.

Now may I call upon the next panel: The Lieutenant Governor
of the Gila River Indian Community, Cecil Antone; the chairwoman
of the Pawnee Tribe of Oklahoma, Elizabeth Blackowl, accom-
panied by the chief attorney of the Native American Rights Fund,
Walter Echohawk; the chairman of the Standing Rock Sioux Tribe

of North Dakota, Jesse Taken Alive, who is accompanied by the
NAGPRA representative of Standing Rock, Tim Mentz; and the
chairman of the American Association of Museums and president
and chief executive officer of the Milwaukee Public Museum, Wil-
liam Moynihan.
May I now call upon Governor Antone.

STATEMENT OF CECIL F. ANTONE, LIEUTENANT GOVERNOR,
GILA RIVER INDIAN COMMUNITY, SACATON, AZ

Mr. Antone. Thank you, Mr. Chairman.

It's good to be here again. We testified before on legislation that
was approved in 1990.

At the outset, I would like to say basically that, in our situation
with NAGPRA and the implementation, we have not done a lot in
this particular legislation because, as you stated before, there are
a lot of problems as far as the regulations, and the previous speak-
ers have spoken to that, and the amount of resources.

What I want to at least say today is that, regarding my testi-
mony, is our experience in Arizona, as far as our four tribes and
the efforts we've done with Arizona law, because I think it has a
lot to say because Arizona law was approved the same time
NAGPRA was approved, in December 1990.

I know that Senator McCain had a lot of inquiries about the law
in Arizona, because at the time the committee was looking at the
passage of NAGPRA.

Basically, the inquiries that we've received over the last 4 years
has been in excess of 150 letters, and we have responded to those
letters indicating our interest in trying to at least make visitations
to these locations.

I know in my testimony I did not make mention, but we did re-
ceive part of the NAGPRA grants, and that was between Gila River
and Salt River, and so part of those resources are going to be to-
ward visiting these institutions — not all of them, but maybe one or
two that has the highest concentration of our people.

The other thing is that we, as — often people in our location with
the other four tribes have had a lot to do as far as putting the
State law into place, because we felt at that time that there had
to be at least some cohesiveness among tribes, particularly if they
are all related.

When I testified back in 1990, I believe, before NAGPRA was ap-
proved, we had put together a repatriation policy and it's still in
place, and we have done a lot as far as implementing that policy,
both to Federal agencies and to State law.

I guess our experience, at least with NAGPRA, has been very
limited, as I stated, and it has only been with programmatic agree-
ments we've done recently with the Air Force, and soon to do with
some private entities, as well, because of the location of the mining
facility close to our reservation.

In essence, we have, as far as the State laws, we've repatriated
over 3,000 human remains of our people and funerary objects.

The biggest difficulty, as my testimony states, is the lack of re-
sources, and so what we're doing is developing partnerships with
the Federal agency to develop a repository there at Gila River to
house all the Dig irrigation project in Arizona called "the central

Arizona project," and we've made an agreement with the Bureau
of Reclamation to house and develop or construct a repository in
our community. And we will also be using our own resources to
supplement that, because we obviously want to repatriate a lot of
the cultural patrimony items from other institutions in the country
dealing with NAGPRA and house these in our community.

For instance, recently, this past July, I visited the National Mu-
seum of the American Indian and viewed two of the only four in
existence Pima blankets made of 100 percent cotton in that institu-
tion, and we want to at least try to get some of those blankets back
to Gila River in review for our people, for our younger people.

But, in essence, that's basically my testimony. I appreciate the
effort that you have done, Senator, and Senator McCain, and all
the committee improving NAGPRA, even though it is a start and
there has been some delay. Five years has been a long time. I rec-
ognize the bureaucracy that everyone has to go through, but I
didn't really want to say anything against the National Park Serv-
ice or the Review Committee. I think they've done a job required
of them, and with a lack of resources, and I applaud the committee
for at least looking into providing additional moneys to Indian
tribes to fully implement this law.
Thank you.

[Prepared statement of Mr. Antone appears in appendix.]
Senator Inouye. I thank you very much, Governor.
You mentioned in your testimony that an agreement was reached

between your tribe and the Bureau of Reclamation

Mr. Antone. Yes.

Senator Inouye. [continuing]. To construct a repository to house
archaeological material. How did you reach this agreement?

Mr. Antone. Well, initially this was one of my ultimate goals
when I got into office, to develop some type of museum and reposi-
tory for our tribe. Right now, as you may or may not be aware, we
do have an agreement with the Bureau of Reclamation to receive
water, one of the largest allocations under that law, 172,000 acre
feet.

In part of the process of that, they are going to be doing archae-
ological work in the community developing for the distribution ca-
nals, and so forth.

Obviously, they are going to have to go through the NEPA proc-
ess, and one of the things they are going to do is archaeological
work, and so, rather than house all the material from Gila River
and put them into Tucson, where the Western Archaeological Advi-
sory Conservacy offices or institutions where they are housed now,
we thought, "Well, why don't we build it in Gila River and develop
a partnership with Reclamation?"

So we instituted that about IV2 years ago, and so tentatively we
have an agreement with that.

Also, we're one of the self-governance tribes, and we have in-
cluded that in the recent AFA agreement with the Bureau of Rec-
lamation.

Senator Inouye. It will be just to house archaeological remains
of Gila River?

Mr. Antone. No; it will be all CAP since day one when they
started from the Colorado River all the way to Tucson.

Senator Inouye. You mentioned that the lack of final regulations
affected your repatriation efforts. How did it affect it? Slowed it
down?

Mr. Antone. It slowed it down to the extent that, rather than
dealing with the regulations, since they weren't there, we just de-
veloped agreements with Federal agencies. In that one case I men-
tioned about the Williams Air Force Base, a huge archaeological
site, we developed an agreement based on some of the provisions
in NAGPRA, dealing at least with consultation when they start
working on their base, and as far as development, that they need
to consult the tribe.

I'd be more than happy to provide you a copy of that pro-
grammatic agreement. In this case, it worked out very well.

Senator Inouye. You worked with the Keepers of the Treasures;
is that correct?

Mr. Antone. Not today, as of today. I was the first board mem-
ber, I was the chairman of the board when it first came into exist-
ence.

Senator Inouye. But in your work with the Keepers, could you
describe any barriers or impediments in the repatriation process
from that standpoint?

Mr. Antone. The essence of Keepers is to promote cultural
awareness and language and retention of language and cultural re-
tention for Indian people. In my experience with Keepers, there
were several things going on.

As you know, in 1992 also the amendments to the National His-
toric Preservation Act were approved, and also the NAGPRA was
approved in 1990, and really I did not foresee any problems. I
think the Agency and Park Service were trying to deal with the is-
sues but, as stated before, the lack of resources.

I guess I have to say, as far as regulations, the 1992 amend-
ments of the National Historic Preservation Act, even though they
have some draft agreements right now or regulations, they are a
little bit better, quicker done — I guess that's what I'm saying — than
the NAGPRA regulations.

The Park Service has gone out and had several meetings with
the tribes on the National Historic Preservation Act, and what I'm
meaning is that that particular legislation which was approved in
1992 has been addressed a little Dit more considerably as far as
NAGPRA regulations.

Senator Inouye. I will be asking all of the witnesses, as I did in
the first panel, to submit to us in writing your views on the recent
Hawaii case, which would have an impact upon your efforts.

For example, I'd like to know what you think about exempting
information on Native American human remains from public disclo-
sure. I'd like to know what your position would be on the appoint-
ment of guardians so that all of these human remains might be
protected, and whether this act should be amended to make certain
that Native American human remains have a legal standing in
court, because under the ruling of the court, it does not have legal
standing, and this would cause, I would say, major concern in this
community because of the uncertainty involved.

So I will be asking all of you to, if you will, share with us your
thoughts on this.

I'd like to now call upon

Mr. Antone. Senator?

Senator Inouye. Yes.

Mr. Antone. Could I just add one comment to what you men-
tioned earlier about unidentified human remains?

Senator Inouye. Yes.

Mr. Antone. I guess in our situation, Arizona law, in that law
basically it says that the closest tribe where the human remains
were uncovered, that tribe would be the tribe to repatriate those
human remains, if they desire.

There have been cases in Arizona where that has occurred, be-
cause ultimately the purpose of repatriation is to bring back the
ancestors and rebury them, no matter where they are at. Even
though they are not identified, they are human beings. They were
human beings.

And so in our situation we've always, even though they were un-
identified and we didn't know what tribe they came from, we took
them in and reburied them because they deserved that.

Thank you.

Senator Inouye. Thank you very much.

May I now call upon the chairwoman of the Pawnee Tribe, Eliza-
beth Blackowl.

STATEMENT OF ELIZABETH BLACKOWL, CHAIRWOMAN,
PAWNEE TRLBE OF OKLAHOMA, PAWNEE, OK, ACCOMPANIED
BY ROBERT PEREGOY, ESQUIRE, ATTORNEY AT LAW, NATIVE
AMERICAN RIGHTS FUND, WASHINGTON, DC

Mrs. Blackowl. Good morning, Vice Chairman Inouye and mem-
bers of the committee. I am Elizabeth Blackowl, president of the
Pawnee Tribe of Oklahoma. Thank you for the opportunity to tes-
tify on behalf of the Pawnee Tribe about our efforts to implement
Federal repatriation laws.

I will summarize my written testimony.

Mr. Vice Chairman, the Pawnee Tribe commends you and Chair-
man McCain and other members of the committee for your dedi-
cated leadership in passing NAGPRA. It is difficult to express in
words our heartfelt sentiments involved in repatriating our beloved
ancestors.

For example, we were deeply moved by Senator McCain's pres-
ence at the Fort McNair ceremonies held last June. We were hon-
ored to have him with us when the remains of six Pawnee scouts
and U.S. Army veterans were repatriated from the Museum of Nat-
ural History. Our tribal representatives were very touched by the
good words that he shared with us on that day.

With you, Senator Inouye, we appreciate your continued leader-
ship and support in our repatriation efforts, and we appreciate
your sponsorship of this law.

I am here to testify that NAGPRA can work. Since 1989, our
tribe has repatriated and reburied 1,100 relatives from Federal and
State museums. This was accomplished in four ceremonies, begin-
ning in 1990. Three of these burials occurred under Nebraska and
Kansas repatriation laws. The fourth reburial was done in 1995
under Federal law, NAGPRA, and the National Museum of the

American Indian Act. We reburied 400 ancestors and their burial
objects.

These dead were repatriated from four State and Federal muse-
ums. They were reburied with tribal rights and with military honor
for the U.S. Army veterans.

The Pawnee Tribe currently has a repatriation claim pending
with the Museum of Natural History. This claim was initiated in
1988. A part of this 7-year claim is still pending at the Smithso-
nian. It is part of an appeal recently decided by the Native Amer-
ican Review Committee of the Smithsonian Institution. This was
the first appeal decided by that committee, and we commend the
Review Committee for their fair and timely way the handled our
appeal.

We started to see results under NAGPRA, but improvement is
really needed. Our experience tells us that there are three specific
issues that must be addressed.

First, Federal repatriation budgets are drastically under-funded.
The 1995 repatriation cost $80,000, although we did receive a
$7,500 grant from the Forest Service. In fiscal year 1994 and 1995,
the National Park Service received 337 proposals from tribes and
museums, totaling $30 million, but was only able to fund 83 grants
for $4.3 million. This is a $25 million gap. The current level of $2.3
million is clearly inadequate.

Congress needs to appropriate at least $10 million annually to
implement NAGPRA in a meaningful way. Let us not forget that
we are talking about the reburial of our ancestors.

Second, our repatriation claim at the Museum of Natural History
was delayed and burdened with unnecessary Government studies.
These studies were unrelated to the Pawnee claims. This resulted
in excessive and unnecessary cost to the tribe and to the Federal
Government.

To remedy this problem, we recommend that the committee di-
rect the Smithsonian and other affected museums to: No. 1, refrain
from excessive delays in corresponding with Indian tribes; No. 2,
refrain from conducting unnecessarily and unduly expensive new
studies, especially under the guise of documenting or inventorying
the remains at issue; and, No. 3, to consult with Indian tribes to
make the process less technical and expensive and to streamline
claims.

Third, the failure of the Secretary of the Interior to finalize
NAGPRA regulations until this week has caused problems. This in-
cluded delays and increased cost to the Pawnee Tribe in our claim
at the Nebraska State Historical Society. Because these overdue
regulations were just recently published, the hearing record should
be kept open so tribes can comment on these regulations.

Mr. Chairman, this concludes my testimony. On behalf of the
Pawnee people, we thank you and your committee for your leader-
ship in this important human rights issue, and the Pawnee Tribe
is willing to assist the committee in any way possible.

Thank you.

[Prepared statement of Ms. Blackowl appears in appendix.]

Senator Inouye. Thank you very much.

I would like to first note that Walter Echohawk is not here and
that Mr. Robert Peregoy is with you.

I would like to also congratulate you on the successful repatri-
ation of your Pawnee scouts. Could you tell us how long that proc-
ess took?

Mr. Blackowl. I'll have to refer that question to Mr. Peregoy.

Mr. Peregoy. The repatriation process with the National Mu-
seum of Natural History took approximately 3 years, as far as I
can tell, Senator Inouye, and was quite costly. It cost the Pawnee
Tribe and the Native American Rights Fund about $51,000.

Senator Inouye. Did vou say $51,000?

Mr. Peregoy. Yes; $51,000. That includes other repatriations
that were done with the Federal Government under NAGPRA, be-
cause problems with excessive delay, as well as what we consider
to be very unnecessary studies that were conducted by the Museum
of Natural History were really unrelated to the Pawnee claims at
issue. That's one of the serious areas of attention that we feel is
required, that the museums are conducting studies that aren't
called for under the act, under the guise of inventorying and docu-
menting remains where the act, on its face, states that the cultural
affiliation is to be determined based upon existing information.

Senator Inouye. At the beginning of the process, was there any
question as to the identification of the four Pawnee scouts?

Mr. Peregoy. I am not aware of the specifics if there was an
issue in terms of the identification of those six Pawnee scouts, but
with the one repatriation that was handled this year under
NAGPRA with the Federal Government, there was a question at
the beginning.

The Museum of Natural History had responded initially to the
Pawnee's claim that they only had the remains of two Pawnees,
and at that time we knew that there was a substantial more num-
ber than that, and so Native American Rights Fund, in conjunction
with the Pawnee Tribe, found it necessary to hire additional ex-
perts and historians to document our claim at that time.

We documented that there were 80 Pawnees held by that mu-
seum, and had we taken the museum's number up front, we would
have left 78 of the tribal ancestors of the Pawnee people on the
shelves in those warehouses, and it cost us approximately, as I
said, $50,000 to go through that process to do this kind of docu-
mentation.

Senator Inouye. So finally how many remains have you re-
ceived?

Mr. Peregoy. Under NAGPRA, 400 from State and Federal mu-
seums, and a total — the Pawnee Tribe, over the course of the last
6 years, has repatriated 1,100 ancestors and reburied them.

I think it is very significant to note, Senator, that the present-
day Pawnee Tribe consists of 2,500 people, and 1,100 of that 2,500
is about 44 or 45 percent, so that is a very significant number.
That's almost one-half of the living Pawnee people today who have
been repatriated from these museum shelves and reburied, and
that is a very significant number.

If you extrapolated that to the United States population, that
would be approximately 120 million people in museum shelves. It
is very significant to the Pawnee society, and that's one thing that,
frankly, irks NARF and the Pawnee Tribe, and I think that you

and Senator Campbell were very eloquent about it this morning,
that there is just not an appreciation.

When we're talking about appropriations here, that is a key issue
that the majority of the Members of Congress do not understand
that we are talking about significant spiritual matters, and that
basically that this Nation goes to great extent and lengths to pro-
tect and repatriate its dead, but when we're talking in this instance
about the first Americans putting their ancestors and spirits to
rest, there just does not seem to be that kind of priority on it.

I think it needs to be elevated to the human level, because in the
case of the Pawnee Tribe, throughout this entire process that was
very acrimonious, with different State agencies involved, it is very,
very true that the living Pawnee people felt collectively a tribal
spiritual sickness because of the mistreatment of their dead, and
when the people were finally laid to rest, there was a great spir-
itual healing among those people.

You all identified the numbers today of 200,000 remains out
there. That kind of spiritual sickness and pain continues to be in-
flicted and plagued upon the Indian people of this country, and
Congress should certainly see fit to look, when we're looking at tril-
lion dollar budgets — yes, we're in a budget-cutting mode, but when
we're talking about $10 million annually — and that is basically a
conservative number — that Congress should see fit to prioritize this
right now and say,

Look, it's finally time to let these people be put to rest and let the spirits be rest-
ful and not wandering around aimlessly and to heal up those living relatives of the
people that are here today and to put the money up and finally do it and get it over
with.

Senator Inouye. In your estimation, how many more identifiable
Pawnees are still on museum shelves?

Mr. Peregoy. That's a difficult question to answer at this time.
We do know for a fact that there are probably between 100 and 200
remaining in Nebraska museums that we have not been able to —
we don't nave the money, haven't had the money to come up to
identify them, but based upon information provided by Nebraska
museums, they are probably, we think, another couple hundred.

Senator Inouye. I thank you very much.

May I now call upon the chairman of the Standing Rock Sioux
Tribe, the Jesse Taken Alive, accompanied by Tim Mentz.

STATEMENT OF JESSE TAKEN ALIVE, CHAIRMAN, STANDING
ROCK SIOUX TRIBE, FORT YATES, ND, ACCOMPANIED BY TIM
MENTZ, NAGPRA REPRESENTATIVE, STANDING ROCK SIOUX
TRBBE

Mr. Taken Alive. Thank you very much, Mr. Inouye.

[Remarks in Native tongue.]

Mr. Taken Alive. I want to begin by saying thank you, as well,
to those individuals who have actually repatriated, who have actu-
ally reburied, who have stood there in the cold winter winds of
North and South Dakota and reburied our ancestors. I want to
publicly thank them for the record for their tears and pain that
they endured for us so we can be here today and petition for more
enhancement of this process, because it is one that is painful and
one that is causing a lot of harm to our people.

Senator you have asked everybody since I've been in the room for
their input and their comments on important and sacred issue that
you began with your comments this morning, something that hap-
pened to your people in Hawaii. I will offer this for the time being,
and we will followup with more as we discuss it at home.

I think the question needs to be asked of those people who took
these artifacts, those people who were involved in this issue for you
in your home country in Hawaii. Were they stolen? If they were
stolen, why were they stolen? What was the purpose of stealing
from us?

We also need to share with them that the guardianship capacity
isn't us guarding the remains. It's not us guarding artifacts. It's the
spirit of those artifacts, it's the spirit of those remains that guard
us. That is our interpretation of guardianship capacity. We're not
guarding them, they're guarding us. They're with us.

As indigenous people it is in our heart and our blood to believe,
not to know, not to contemplate, not to rationalize, but to believe
that they are here and guarding us, because if we look at history
as indigenous people, with all these suppressions, with all the gen-
ocidal acts, with all the acts of eradication aimed at indigenous
people, we wouldn't be here today.

So we know for a fact and we can humbly believe that the re-
mains and their history that they left are our guardians and they
will always be.

That is our interpretation in their courts, in their laws, and we
ask, upon their honor, to respect that.

Senator Inouye, we have buried approximately 3,000 ancestors.
We haven't put a cost on it, but we know it is going to be for the
goodness of our people and those yet born.

I would like to say that without adequate input into this proc-
ess — and, as you can see, the testimony that we have submitted
says that time and time and time and time again — without ade-
quate input from the indigenous people of this continent, of this
country, without that input and without seeing an expeditious
manner the reburying of these remains and returning of these arti-
facts, all we are doing is justifying the grave robbing that took
place.

We don't see that adequate input from Indian Country. We're
seeing the justification in 1995 of grave robbing.

There is a lot of frustration. There is a lot of emotion. There is
a lot of pain in this subject, in this matter that we talk about
today.

It has been pointed out through the morning that it is because
of this — yes, because of lack of money; yes, because of lack of re-
sources — because our ancestors and their remains being disturbed,
we are suffering a lot of consequences from it.

How do we buy serenity? How do we buy that peace of mind?

In this sense, in English words, we say that with the return of
our relatives we can attempt to address it, but we can't buy seren-
ity. We can't buy peace of mind. We are asking just to be treated
fairly, just to be heard, just to enhance and be able to build upon
this government-to-government relationship, to be heard as these
rules and regulations and policies are being promulgated.

We know what's going on now. We have suffered some of that
pain through our parents and grandparents. It has been asked this
morning if anybody's parents' or grandparents' or great-grand-
parents' graves were robbed, what would happen? It would end up
in court. The perpetrators would get their due, what's coming.
That's simply all we're asking. Just return them. Just return these
remains to us, please. You've studied us long enough.

With regard to unidentifiable remains, we can believe that those
remains dating back 500 years or more are American Indians. They
are Native Americans and don't have to be studied any more. If
that wasn't the case, again, there would have been a monumental
court case. If those remains were not Native American, there would
have been a monumental court case, but they are American Indi-
ans, and we're asking for their return. Take them out of those
boxes. Take them off those shelves. Give them back to the people
and let us decide how that should be done, because, after all, as
American Indians, as indigenous people, those are our ancestors.

What would happen if we went to Europe? What would happen
if we went to any other country and did that? That was done to
us.

So there are a lot of unresolved grief issues that we're living with
in Indian Country today. They are inter-generational. They are
passed on time and time again.

What we're saying today is we know and we believe that, with
the return of these remains, a lot of those inter-generational grief
issues will be dealt with, will be addressed, and finally we'll begin
to continue down that path of healing as American Indian people.

Our proposal is very simple: again, to look at government-to-gov-
ernment relationships. If we in Indian Country don't take advan-
tage of this policy and this proclamation that President Clinton
made, we would be part of paternalism and we would be part of
one of the biggest jokes when it comes to American Indian policy
with regard to the United States, because commonsense tells us
that one policy is not going to work for 555 respective indigenous
nations of North America.

Simply what we're suggesting as a start is to get a true govern-
ment-to-government and to build on this government-to-govern-
ment relationship that will allow us to develop regional policies of
repatriation, as we're talking about today, policies of education re-
gionally, and that would be a starting step to a true government-
to-government relationship.

We know that the Government expended a lot of resources in
signing those treaties, those land lease agreements — a lot of re-
sources. They didn't just say one policy's going to take care of all
of Indian Country. They went out and visited all of our respective
ancestors in this process, and that's all we're saying — continue that
respect.

So this would be a starting step to that process of coming out to
Indian Country.

Today I have a council meeting going on at home. I have asked
the leaders of our tribal government for permission to be here be-
cause we all believe this is a very, very important matter that
needs to be addressed.

You can take a look at the testimony that we've provided. Unfor-
tunately, we haven't gotten a chance to see any of the draft regula-
tions. We were told that laws and mandates preclude us from see-
ing those. So some of the comments that are in here may have been
addressed. We hope they have been — some of the frustration in
here. But the point remains: We haven't gotten a chance to see
those.

Just to give you an example of the frustration that was shared
with the Review Committee, one of the items we bring out is that
the proposed regulations published in May 1993 consisted of 15
pages. The proposed final regulations are reportedly over 140
pages. Again, this may be unfounded, because, as of 2 days ago, the
regs have been published, but this is some of that frustration that's
encountered when we don't have adequate American Indian input
into policymaking.

After all, it's us. It's us who are going to be affected, so maybe
it's good to have us as part of the process.

Last, what I would like to share — two requests. First, if we could
get a copy of this transcript of what's being said today so we can
match it up with what has been experienced for us with this proc-
ess of NAGPRA repatriation. Second, if we can, before we leave
this room, have a copy of the regulations that were published 2
days ago and not have to wait for longer periods of time to get
those, we'd really, really appreciate it.

I apologize if some of the comments may have been offensive to
policy, policymakers, or to the system, but when we take a look at
remains, we're talking about our people, we're talking about their
spirits, we're talking about their wisdom, we're talking about the
connections they continued to make with us before the United
States was a country. We know that those are of simplicity, those
are of truthfulness, those are of honesty.

Again, I thank the individuals in our respective homelands that
we currently occupy for their work that they have done as they
have repatriated and continue to repatriate remains and articles of
our ancestors. I thank them for their pain and their suffering and
their tears that they shed for us.

And I thank you, the committee, for allowing me this opportunity
to bring these issues before you. As is outlined in our testimony,
we thank you for what you have done to make this historical law
do what it was intended to do — open the door to the spirit world
one final time for our loved ones and begin a healing process by
returning the sacred items that we need to revitalize our nations
[Native words].

[Remainder of testimony in Native tongue.]

Mr. Taken Alive. I thank you very much, Senator Inouye. If
you've got comments or questions for us, we'd be happy to entertain
those. Those that I can't answer, I'll ask my relative, Mr. Mentz,
who is our lead person on this back home on Standing Rock and
works with the North Dakota Intertribal Reinterment Committee,
to answer some of the questions or comments that you would like
to find at this time.

[Prepared statement of Mr. Taken Alive appears in appendix.]

Senator Inouye. I thank you very much, Chairman Taken Alive.
As I have indicated, we will be submitting a series of questions in
writing, hoping that they will respond to them.

As to your request that the final regulations be available to you,
I will have one here for you — my own. If you want additional cop-
ies, copies can be made. There are 35 pages of very fine print, and
I would need new prescriptions to be able to read this. It is right
here.

I would like to ask a question of not only you, sir, but all other
interested parties. I think all of us will agree that when this proc-
ess comes to an end, when all the existing tribes are recognized or
not recognized, are fully satisfied that their ancestors have been re-
turned to them, there will still remain in shelves and boxes
throughout this land thousands upon thousands of unclaimed, un-
identified human remains that we know are Native Americans. The
question I ask is: Do you have any suggestions as to how we should
provide them with a final resting place that they can go in peace?

Mr. Taken Alive. Yes; my response to that is: We would call
upon our experts, we would call upon our respective spiritual lead-
ers to ask guidance from the spirit world. This may seem prepos-
terous, this may seem crazy as we speak in a setting as we are
today to the many non-Indian friends and foes we may have. They
may think, "Boy, those guys are crazy, the/re ridiculous, they're
losing their mind," but this is how we envision continued healing
to occur. So we would call upon those means.

In fact, maybe they are here waiting for us to sit down with them
and put into writing their words and their bits of advice. I know
that the answer, the solution is out there, Senator. It's out there
for us, but all we're saying is, in this system, give them an oppor-
tunity to offer their solutions, and just as the tip of the iceberg we
talk about NAGPRA and how that has not happened.

That would be my response to your question, sir.

Senator Inouye. Well, I hope that we can find some way to pay
the proper respects to these ancestors of yours that are unidenti-
fied and unclaimed.

Mr. Taken Alive. If I could add on to that, Senator, at the turn
of the century there was a historian or anthropologist who came to
Standing Rock Reservation and attempted to record or did record
a lot of the traditional songs, be they sacred, ceremonial, or social
songs, and put them on a tape.

Since that time, everybody thought that was the gospel truth,
what had been recorded. But because of technology at that time,
not being able to preserve those recordings, we have come to find
out, when we speed correct those particular songs, the words are
different, the meaning is different.

The point I'm making: Sometimes we think through policy, some-
times we think in today's world that we're doing the right thing,
but in reality we're not. We're not doing the right thing.

So I just want to try to emphasize or illustrate just what I have
said. For almost 100 years, people thought that this was the gospel
truth of some of those songs that were recorded.

I might add that they are stored at a Smithsonian Institute on
wax means of recording. Come to find out, it is not the gospel

truth. When they are speed corrected, they have a totally different
meaning. That's just to illustrate my point again.

Senator INOUYE. Thank you very much, Chairman Taken Alive.

If I may, I would like to call upon the chairman of the American
Association of Museums and the president and chief executive offi-
cer of the Milwaukee Public Museum, William Moynihan.

STATEMENT OF WILLIAM MOYNIHAN, CHAIRMAN, AMERICAN
ASSOCIATION OF MUSEUMS; PRESIDENT AND CHIEF EXECU-
TIVE OFFICER, MILWAUKEE PUBLIC MUSEUM, MILWAUKEE,
WI

Mr. Moynihan. Thank you, Mr. Chairman. I appreciate the op-
portunity to be here today and to testify on behalf of my own insti-
tution and the American Association of Museums.

I can say with some enthusiasm and great pride that the Mil-
waukee Public Museum is committed to implementing both the in-
tent and the spirit of NAGPRA It has been a commitment right
from the beginning, and well see it through.

I thought it might be helpful to use our experience as an example
from the museum world on just what we've been doing over the
last few years.

As background, the Milwaukee Public Museum is an institution
that's probably a mid-sized museum. We have a budget of $8 mil-
lion yearly. We have a staff of 135 people, full-time equivalents,
and about 4.5 million items in our collections — the entire collec-
tions.

We were, when NAGPRA was passed, a department of Milwau-
kee County, but, because of decreasing funding from Milwaukee
County, the museum became a private entity. In the process, we
lost $1.5 million worth of funding. We lost 27 percent of our staff.
Our budgets were cut, and a lot of programs lost.

I think that's important background to get a sense of the commit-
ment that we have made at the Milwaukee Public Museum, be-
cause our most recent estimates show that we will be committing
well in excess of one-half a million dollars to implement the intent
of Congress on this matter.

The task has been a daunting one. We've embraced it with en-
thusiasm, but it has been a daunting task.

We have approximately 50,000 items in our archaeology collec-
tion that are affected by NAGPRA, approximately 22,000 in our
ethnology collections. Also, the institution has been collecting mate-
rial for its 113 years of existence, so the records are uneven, de-
pending on different professional standards over time, so we've had
to go back and reconstruct records according to the questions we
now have to answer that NAGPRA has brought to us.

Even given these circumstances, I think what we've done is laud-
atory. If there is any single accomplishment that has been most im-
portant to my institution, what NAGPRA has brought to us is a
new and productive relationship with Native American groups.

We also have been conducting these inventories. We conducted
the one by the deadline of 1993 by going beyond the law. We didn't
just meet the minimum requirements. We went beyond and, I
think, in the process built up a great deal of credibility and con-
fidence in Native American groups that have dealt with us.

Since the 1993 deadline, we have been doing two things. One is
dealing with the archaeology section, but also responding to numer-
ous phone calls, site visits, and letters requesting further informa-
tion. Again, I think we've gone beyond the law in the types of infor-
mation and the completeness in our response.

We've also taken a leadership role whenever we could or when-
ever we were called upon to provide consulting help to area Native
American groups interested in expanding their own museums,
building new museums, care of the collection, or training profes-
sionals.

Like the museum world, in general, the lack of final regulations
5 years into the law and after two of the major deadlines had, in
fact, passed caused problems for us. It caused ambiguities. It
caused us to question a number of what should have been rel-
atively straightforward decisions by calling colleagues at other in-
stitutions, by trying to come up with consistent responses, and it
just caused more difficulty in our processes.

The other area that has caused difficulty is the funding area, as
I said. We will have expended well in excess of half a million dol-
lars. We have not been one of those museums who has been suc-
cessful in receiving the NAGPRA grant.

Let me close by making the two recommendations that are in my
written testimony. One may be not necessary any more. My written
testimony called for the final issuance of the regulations, but I
have not seen the final regulations. My understanding is there are
still issues that are not completely addressed, and so they're not
really final.

The Native Americans of this land and the museums need the
final regulations finally after all this time in order to go about our
business.

Second, I want to join my colleagues at this table and urge the
Congress to urge the Department of Interior to increase the fund-
ing level available to Native Americans and available to museums
to the $10 million level.

Thank you, Mr. Chairman.

[Prepared statement of Mr. Moynihan appears in appendix.]

Senator INOUYE. Thank you very much, Mr. Moynihan.

You've indicated that, because of certain problems such as fund-
ing? y° u have not been able to complete your inventory in the time
allotted. How much more time do you think your museum will re-
quire to complete the inventory?

Mr. Moynihan. Right, Senator. We are one of the museums that
has requested an extension. We didn't realize the extent of the
problems of our records in terms of our archaeological collections.

Our request is submitted for an extension of 2 years, our feeling
is we can do it within that time, short of that. We're going to try
to do it well before that, but we've asked for a 2-year extension.

Senator Inouye. Do you have any information about the larger
museums, how much time they would need? Or do they need any
time?

Mr. Moynihan. I'm sorry, Senator. I don't know.

Senator Inouye. Mr. Moynihan, I noted that when this process
is over, when all of the existing tribes — and I use that word very
definitely — existing tribes are satisfied that their ancestral remains

have been returned, there will still remain unclaimed and unidenti-
fied thousands of human remains, which everyone would conclude
are Native Americans. What do you think we should do with them?
Should the Secretary of the Interior promulgate regulations to ad-
dress this problem?

Mr. MoYNlHAN. I'd like to respond on behalf of my own institu-
tion. I don't know the position of the American Association of Mu-
seums on this. I think it would be very important that we come up
with a process that does not put the onus on an individual museum
to determine where, in fact, remains should go.

I think there ought to be a process to return all the remains.

Senator Inouye. It will be, I think, a major problem for all of us
to address. We would like to work together with the leaders of In-
dian Country and leaders of the museum community to come up
with something, because otherwise you're going to have on these
shelves thousands of skulls and skeletal remains with no home,
and I think all of us agree that we should treat these remains with
the respect that they are entitled to and provide them with a final
resting place.

So I look forward to receiving your thoughts and your rec-
ommendations in this area.

As to copies, we do not have too many, but we would be very
happy to share the 35 pages with you.

Mr. Moynihan. Thank you, sir.

Senator Inouye. Once again, on behalf of the committee and on
behalf of Chairman McCain, I would like to thank all of you for
your patience in staying with us this morning and providing us
with your wisdom, and, as we in Hawaii would say, your manao,
because they are most helpful to us.

Apparently it would appear that, as a result of the recent court
decision, amendments may be necessary to the act so that remains
will be given adequate protection.

I would like to announce that the record will be kept open for
2 weeks. If you have any addendums, any supplemental informa-
tion you would like to share with us, or if others in the audience
would like to express their words, please submit them to the com-
mittee.

With that, thank you.

[Whereupon, at 12:05 p.m., the committee was adjourned, to re-
convene at the call of the Chair.]

APPENDIX

Additional Material Submitted for the Record

Prepared Statement of Hon. Ben Nighthorse Campbell, U.S. Senator from

Colorado

Mr. Chairman, thank you for providing me the opportunity to make a brief state-
ment and thank you for holding this hearing on the status of the implementation
of the Native American Grave Protection and Repatriation Act [NAGPRA].

As an original cosponsor of NAGPRA, while serving in the House, I strongly en-
dorse the goals and objectives embodied in this statute. As I recall, this legislative
initiative took many years to develop and went through many modifications prior
to its enactment in 1990.

Central to the development of NAGPRA was to provide Indian tribal governments
with the authority to reclaim vital elements of their respective cultures: Funerv ob-
jects, ceremonial objects, and bones of their ancestors, which are today housed and
stored in museums and other repositories around the country. Enactment of
NAGPRA is in many ways a vital element of our ability to preserve our native cul-
tures.

It has been 5 years since NAGPRA was signed into law by President Bush. While
there has been progress in the implementation of NAGPRA, it seems progress has
been rather slow and incremental.

I do have some concerns regarding the implementation of NAGPRA. First, it is
apparent that the costs associated with the implementation of NAGPRA are partly
responsible for its slow implementation. Considering the tough budgetary con-
straints Congress currently finds itself in, funding may continue to be difficult.
However, last year Congress did appropriate approximately $3 million for the imple-
mentation that would allow museums and other institutions to complete their inven-
tory process. I am interested to know what specific progress was made in this re-
gard and to hear estimates on what further appropriations will be needed. I am also
interested to know what other Interior agencies have been doing to comply with
NAGPRA. Nonetheless, I would like to see NAGPRA continue to be funded at an
appropriate level which will ensure continued success.

Second, I would also like to hear more about the actual implementation process.
I realize implementation and funding go hand in hand. However, I am interested
in what mandates have been accomplished, and to date, what it has yet to do, and
what difficulties have been encountered.

Finally, the Repatriation Review Committee was kind enough to provide me with
a copy of their report on NAGPRA. In this report the committee addresses the need
to clarify the definition of "Indian tribe." I would like to hear more regarding the
problems being encountered because of the current definition and what rec-
ommendations the committee has to alleviate these problems.

I am hopeful this hearing will enable the members of this committee to accurately
understand what has been done to implement NAGPRA, and importantly, what
more needs to be done to uphold our commitment to the Indian people, while maxi-
mizing the resources that are committed to the implementation of NAGPRA. I look
forward to the testimony provided this morning, and I thank you all for your time.

(49)

Prepared Statement of Hon. Byron L. Dorgan, U.S. Senator from North

Dakota

Mr. Chairman, I am pleased that the committee has decided to hold this most im-
portant hearing on the implementation of the Native American Graves Protection
and Repatriation Act, Public Law 101-601. I am grateful to the chairman for ex-
tending an invitation to testify to Jesse Taken Alive, chairman of the Standing Rock
Sioux Tribe, who is accompanied by Tim Mentz, the NAGPRA representative of the
Standing Rock Sioux. I look forward to hearing their testimony and the testimony
of the other distinguished witnesses here today.

I would like to take this opportunity to briefly mention that I have a long stand-
ing interest in the issues we are discussing today. As a member of the House, I se-
cured passage of H.R. 1124 on November 13, 1989. This bill, which was designed
to expedite the repatriation of Indian remains and grave goods by requiring Federal
agencies to inventory and return Indian remains to tribes for reburial, was enacted
into law on November 28, 1989, as part of the National Museum of American Indi-
ans Act.

Implementing NAGPRA is far more than an exercise in administrative rule-
making. Indeed, it involves the very essence of Indian culture. For that reason, the
Federal Government has a clear and compelling obligation to consult with the In-
dian people about this matter.

Unfortunately, I have received information from tribal officials in North Dakota
which indicates exactly the opposite. They tell me that the proposed final regula-
tions have been developed without meaningful consultation and without taking into
account both the letter and the spirit of Public Law 101-601. I would like to take
this opportunity to outline some of their serious concerns, which I hope will be ad-
dressed fully during the course of this hearing. I have contacted the Park Service
and the BIA about these issues. Specifically, Ihave been told by Chairman Taken
Alive, who will testify today, and by Chairperson Twila Martin Kekahbah, of the
Turtle Mountain Band of Chippewa that:

Three drafts of regulatory language were compiled by Federal employees, without
any tribal input, before members of the NAGPRA Review Committee were ap-
pointed, which means that the Review Committee began promulgating regulations
after three drafts were produced without any guidance from the Indian community.
In addition, the Bureau of Indian Affairs attended just one meeting with the other
Federal employees who developed those initial three drafts. Obviously, the tone of
the draft regulations had already been established by that time. Due to the lack of
consultation, tribal officials find the entire definitions section problematic, most no-
tably in the definitions of Indian lands and unassociated funerary objects. These two
definitions very well could impact issues as fundamental as tribal sovereignty and
the ability to fully implement NAGPRA according to Congressional intent, which
was to provide for the return of certain ancestral remains, burial belongings and
other sacred and cultural property to the Indian people.

The final proposed regulations have grown from approximately 15 pages to more
than 140 pages. Despite this major increase in the length, and most assuredly the
scope, of tne regulations, the National Park Service decided through an internal ad-
ministrative decision to not release the document for tribal review. Assistant Sec-
retary Deer, correctly in my view, has refused to sign off on the proposed final regu-
lations until they are published in the Federal Register with a 90-day public com-
ment period so that tribes may voice their concerns. However, I am very disturbed
by the Park Service's unwillingness to open up the regulatory process to the tribes.

As all members of this Committee are well aware, we have a special trust respon-
sibility to Native Americans. I fear that this responsibility has not been met during
the process by which the final proposed NAGPRA regulations were developed. I
hope that today's hearing with bring such issues to light, and will result in the cor-
rection of any behavior which has resulted in the omission of tribal views from the
development of a regulation to implement a law of such major importance to the
Native American people.

National
Congress of
American
Indians

Executive Committee

President

gaiashkibos

Chtppewa

First Vice President

Susan Mas ten

Ytirok

Recording Secretary

S Diane Ketley

Cherokee

Treasurer

Mary Ann Antone

Tohono O'odham

Area Vice Presidents

Aberdeen Area
Ken Billingsley
Standing Rod Sioux

Albuquerque Area
Charles ) Dorame
Tesuque Pueblo
Anadarko Area
Merle Boyd

Bilbngs Area
John Sunchild, Sr.
Chtppewa Cree

Juneau Area
Willie Kasayulie
Yup'ik

Minneapolis Area
Marge Anderson
Mille Ua Ophwe
Muskogee Area
Rena Duncan
Chickasaw
Northeast Area
Keller George
Onnda

Phoenu Area
Irene C. Cuch
Northern Ute

Portland Area
Bruce Wynne
Spokane

Sacramento Area
Hank Murphy
Sycuan

Southeast Area
A Bruce Jones

Executive Director
JoAnn K Chase
Mandfln Hidalsa

2010 Massachusetts Ave.,
Second Floor
Washington, DC 20036
202.466.776?
202.466.7797 /acsunuv

Prepared Statement of W. Ron Allen, President

National Congress of American Indians (NCAI)

To the Senate Committee on Indian Affairs

On the Implementation of the Native American Graves

Protection and Repatriation Act (P.L. 101-601)

6 December 1995

I. Introduction

Good morning Chairman McCain, Vice-Chairman Inouye and distinguished
members of the Indian Affairs Committee. For those that do not know me, I am
Ron Allen, President of the National Congress of American Indians (NCAI) and
Chairman of the Jamestown S'KlaUam Tribe. NCAI is the oldest, largest, and most
representative American Indian / Alaska Native advocacy organization in the nation,
comprised of nearly 200 member nations, dedicated to ensuring the sovereignty of
native governments and the survival and viability of native culture. I respectfully
submit this statement on behalf of our member tribes concerning the implementation
of the Native American Graves Protection and Repatriation Act of 1990 (hereafter
"NAGPRA").

Following the passage of NAGPRA Native Americans rejoiced at the
prospect that our lost ancestors and sacred objects would be returned after decades
of separation. Congress' intent in enacting NAGPRA was to ensure that Native
American remains and funerary objects retained by the federal government,
universities, and the museum community are returned to the appropriate tribes and
tribal organizations. In providing a legal basis for the return of grave goods and
human remains, NAGPRA is "remedial" legislation. However, NAGPRA cannot
remedy the problem it was intended to unless and until adequate funds are
appropriated so that tribes and museums can complete the repatriation process.

n. NAGPRA Grants to Tribes

Though Indian tribes are currently facing difficult times and an ever-changing
legislative landscape in the 104th Congress, repatriation remains a major priority for
Native people. We see the return of our ancestors as a return of our cultural and
spiritual foundations; the very heart of our nations. To bring our people home to
their rightful resting places, and to fulfill the mandates of NAGPRA we need the
necessary funding. As the NAGPRA process continues to move forward, Native
communities are being asked to assume a more prominent role in implementing
NAGPRA. Following the statutory deadline for museum inventories in November
1995, repatriation activity will intensify and will continue to do so as we move

further along in implementing the Act. If the goals of NAGPRA are to be accomplished. Tribal
access to funding is mandatory to assist them in working with the university and museum
communities to identify and repatriate sacred objects and remains.

Our member tribes responded to an informal survey in 1993 taken to determine tribal needs
in complying with the Act. The responses to the survey reveal that actual tribal need far exceeds
both the National Park Service estimates of financial need and the grant funds appropriated for
FY94 and FY95. As you know, the university and museum communities have begun to present
their inventories to the tribes. These inventories list literally millions of sacred objects and
ancestral remains and as they are received, Indian tribes must respond to them under the mandates
of NAGPRA. Tribal response requires funding for technical expertise (historical, anthropological,
ethnological, and archaeological) as well as appropriate legal assistance, especially in disputed
repatriation claims. Under the provisions of NAGPRA, a dispute over a repatriation is heard by
the NAGPRA Review Committee. However, it is still necessary for tribes to hire independent
experts to make their case. These experts can be extremely expensive and most tribes simply do
not have the funding available to hire them.'

Section 10 of NAGPRA authorizes the Secretary of the Interior to make grants to the
Tribes for the purpose of "assisting such tribes and organizations in the repatriation of Native
American cultural items." Furthermore, the United States has a trust responsibility to Indian
tribes and their members concerning the potentially repatriated goods and remains. This
responsibility carries with it the highest of fiduciary standards guiding the conduct of federal
agencies, here the National Park Service and the Department of the Interior, in their treatment of
tribes in the area of repatriation. Given recent appropriations experience, it is unlikely the federal
obligation to tribes will be fulfilled in the realm of repatriation.

Despite a joint tribal - museum community request of some $10 million for FY94 through
FY96, Congress has again appropriated a fraction of that amount ($2.3 million) for NAGPRA
-related grants. This funding level is far below the projected funding level needed to comply with
the provisions of the Act and well below the $10 million level. Mr. Chairman, I think you can
understand that tribes must be provided with sufficient funding to be equal partners in the
NAGPRA process or it simply will not succeed. Museums and universities already have much
of the resources and qualified staff persons available to implement the process, while tribes must
take on the task of hiring new staff and developing a whole new implementation program to
comply with the mandates of the Act. It is imperative, Mr. Chairman, that any review of the
progress made in implementing NAGPRA over the past four years factor in the relative scarcity
of federal funding to ensure its ultimate success.

In the Larson Bay case of 1991 the Smithsonian Institution contested the right of the Larson Bay Tribal
Council to all of the remains unearthed at the Larson Bay burial site. Because of this dispute, the Native American Rights
Fund, who represented the Larson Bay Tribal Council, was required to retain experts in anthropology to help with their
case. The Smithsonian hired their own experts and there was considerable debate before it was eventually determined
that sufficient evidence existed to warrant the return of the remains.

111. Conclusion

Mr. Chairman, today I have only touched on the most critical of obstacles hindering the
full and complete implementation of the NAGPRA — basic funding for Indian tribes. To
properly and faithfully carry out Congressional intent and in order to facilitate the NAGPRA
process, tribes must have access to NAGPRA funding. Enclosed are copies of Resolutions NV-
93-202 and NV-93-170, adopted by our member tribes regarding grant levels made available to
Tribes under the Act. As you can see, our tribes have expressed the need for funding sufficient
to "meaningfully implement" the Act; and have also urged that tribes receive "the full amount of
the appropriations authorized under the NAGPRA allocation." (See attached resolutions). While
acknowledging the difficulties of the current budget situation, it is imperative that sufficient
funding is made available to tribes now. In the alternative, the level of funds necessary to ensure
compliance with the Act in the years ahead will be even greater.

Mr. Chairman, I again wish to thank you for the opportunity to submit this statement, and
I look forward to appearing before you very soon to discuss the many problems facing Indian
tribes and Alaska Native villages.

National Congress of American Indians

Est. 1944

EXECUTIVE COMMITTEE

RESOLUTION NO. NV-93-170

First Vice Pres.d«,i
Jot«ph T. Goombi

Recording Secretary
S. Diane Kelley

Jtmmtlown S'ltWIrn

AREA VICE PRESIDENTS

Aberdeen Area

Chmyonno Rivmr Sioua

Albuquerque Area
Raymond D. Apodaca
Vt /ef r Da/ Sut Puoblo

RESOLUTION TO SUPPORT FULL PROTECTION OF
FUNERARY REMAINS

WHEREAS, we, the members of the National Congress of American Indians of the
United States, invoking the divine blessing of the Creator upon our
efforts and purposes, in order to preserve for ourselves and our
descendants rights secured under Indian cultural values, and otherwise
promote the welfare of the Indian people, do hereby establish and
submit the following resolution:

WHEREAS, the National Congress of American Indians (NCAI) is the oldest and
largest national organization established in 1944 and comprised of
representatives of and advocates for national, regional, and local
Tribal concerns; and

Billings Area
Earl Old Person
Slmckt.tl

Juneau Area
Edward K. Thomas
TlirtgllHmldt

Minneapolis Area
James Crawlord
fotmtl County Polmvtt

Northeastern
J.C. Seneca

Portland Ac.

WHEREAS, the health, safety, welfare, education, economic and employment
opportunity, and preservation of cultural and natural resources are
primary goals and objectives of NCAI; and

WHEREAS, the desecration of funerary remains and objects is still rampant
throughout all geographic areas in the United States; and

WHEREAS, the Native American Graves Protection and Repatriation Act
(NAGPRA) does not wholly address these hundreds of desecrations
within state and private lands that are perpetrated by graverobbers
who are motivated by greed, except for the state of Hawaii;

NOW THEREFORE BE IT RESOLVED, that the NCAI does hereby support
amendatory language to the NAGPRA to extend protection of funerary remains and
objects on all lands within the exterior boundaries of the U.S. wheresoever they may
be situated.

Sacramento Area

Susan Masten

BE IT FURTHER RESOLVED, that the tribes receive the full amount of the
appropriations authorized uner the NAGPRA allocation.

EXECUTIVE DIRECTOR

(Interim)

Rachel A. Joseph

Shoihono Pliulo Mono

900 Pennsylvania Avenue S.E. • Washington, D.C. 20003 • (202) 546-9404 • Fax (202) 546-3741

NV-93-170
Page 2

CERTIFICATION

The foregoing resolution was adopted at the 1993 Annual Convention ot the
National Congress of American Indians, held at the Nugget Hotel, in Reno/Sparks,
Nevada, on 3rd day of December 1993. with a quorum present.

^uu!XJdr\ KtAzn*-^

ikibos, President

ATTEST:

Adopted by the General Assembly during the 1993 Annual Convention, November
28-December 3, 1993, Reno/Sparks, Nevada.

National Congress of American Indians

Est- 1944

IECUT1VE COMMITTEE

REA VICE PKESIDEHTl

RESOLUTION NO. NV-93-202

RESOLUTION TO REQUEST GRANT APPROPRIATIONS FROM
THE NATIONAL PARK SERVICE FOR THE NATIVE
AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

WHEREAS, we, the members of the National Congress of American Indians of the
United States, invoicing the divine blessing of the Creator upon our
efforts and purposes, in order to preserve for ourselves and our
descendants rights secured under Indian cultural values, and otherwise
promote the welfare of the Indian people, do hereby establish and
submit the following resolution:

iMaaapoEs A w
• «■•» Crawford
ormit Commtf Poimwmtoml

WHEREAS, the health, safety, welfare, education, economic and employment
opportunity, and preservation of cultural and natural resources are
primary goals and objectives of NCAI; and

WHEREAS, on November 16, 1990, President George Bush signed into law P.L.
100-601 the Native American Graves Protection and Repatriation Act
(NAGPRA); and

art! —J Ar»
rue* Wynn«

-XECUT1VE DIRECTOR

WHEREAS, the NAGPRA requires federal agencies universities and museums
which received federal funding on or after November 16, 1990, to
undertake and complete a summary of all portions of their collections
to determine what if any items which may be classified as a
unassociated funerary object, a sacred object or object of cultural
patrimony subject to the repatriation provisions contained in the
NAGPRA and that such summaries were to have been completed by
November 16, 1993; and

WHEREAS, the NAGPRA requires that these federal agencies, universities and
museums identify the cultural affiliation of any such objects by the
use of the anthropological and archaeological record, ethnographic
information, written literature and other methods; and

WHEREAS, the NAGRPA requires that these federal agencies, universities and
museums initiate "consultation" with Tribal organizations, groups and
families; and

900 Pennsylvania Avenue S.E. • Washington, D.C. 20003 • (202) 546-9404 • Fax (202) 546-3741

NV-93-202
Page 2

WHEREAS the National Park Service is designated as the agency charged with
administering a grant program to aid Tribal organizations, groups and
families with repatriation activities.

NOW THEREFORE BE IT RESOLVED, that the NCAI does hereby request and
support the appropriations necessary to meaningfully implement the NAGPRA;

BE IT FURTHER RESOLVED, that the NCAI further requests that the Nations
Park Service dutline it's plan to administer a grant program for Tribal organizations
eligible for funding assistance under the regulations developed by the National Park
Service.

CF.RTIFICATION

The foregoing resolution was adopted at the 1993 Annual Convention of the
National Congress of American Indians, held at the Nugget Hotel, in Reno/Sparks,
Nevada, on the 3rd day of December 1993, with a quorum present.

gaiashkibptff President

ATTEST:

\g Secretary

Adopted by the General Assembly during the 1993 Annual Convention, November
28-December 3, 1993, Reno/Sparks, Nevada.

TESTIMONY OF THE

AMERICAN INDIAN RITUAL OBJECT REPATRIATION FOUNDATION

SUBMITTED TO THE

SENATE COMMITTEE ON INDIAN AFFAIRS

NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

OVERSIGHT HEARING

DECEMBER 6, 1995

The American Indian Ritual Object Repatriation Foundation
(AIRORF) , located in New York City, is an intercultural partnership
committed to the return of sacred objects to the indigenous peoples
of this country and to educating the public about the importance of
repatriation. As a resource and conduit for sacred materials,
AIRORF has handled reguests for information and assistance from
American Indian, Alaskan Native and Native Hawaiian individuals,
families and tribes, as well as organizations, museums, private
collectors, commercial enterprises, concerned individuals and the
media.

Obviously, the complete and successful implementation of the
Native American Graves Protection and Repatriation Act (NAGPRA) is
critical if repatriation efforts are to succeed and AIRORF is
vitally interested in NAGPRA and its implementation. Indeed, in
conjunction with the National Indian Policy Center, AIRORF is
publishing a NAGPRA Implementation Manual for tribes which will be
available early next year.

There is no doubt that NAGPRA has already had a great impact.
Substantial repatriation has occurred both under the Act and,
increasingly, outside of the Act. For example, AIRORF has
specifically assisted in return of objects from private art
collectors — activity which is an indirect result of the greater

public consciousness that has resulted from NAGPRA. In a number of
instances, museums and Indian tribes are forging new cooperative
relationships and Indian people have far more information about
museum collections than they have ever had previously.

Nonetheless, AIRORF is concerned about certain obstacles which
have the potential to undermine the long-term implementation of
NAGPRA. It is those obstacles which are the subject of this
testimony.

Our concerns fall into six categories:

1. The failure of both the Act and implementing regulations
to adequately protect remains from intrusive scientific procedures,
even where a tribe with the right to possess those items objects.

2. The substantial delays in the repatriation process
required by the new regulations.

3 . The potential for the repatriation process to be extremely
costly for tribes, as illustrated by recent repatriation claims
handled by the Smithsonian.

4. The failure to adequately address the concerns of Indian
tribes who are not recognized by the Secretary of Interior.

5. Inadequate funding for implementation.

6. The future treatment of cultually unidentifiable remains
and objects.

The Failure to Limit Invasive and obj e ction able Scientific Study

It has come to AIRORF 's attention that some museums are

conducting intensive and intrusive studies of remains ostensibly to

determine or confirm their cultural affiliation. This has occurred
even in instances where a tribe that has a likely affiliation with
the remains based upon existing information has objected to the
study. Such studies may be highly offensive to tribes.
Unfortunately, however, the adopted regulations do nothing to limit
or discourage such activities.

Moreover, in terms of remains and cultural items still
imbedded in the ground, the recently approved regulations will
permit extensive studies of unearthed materials even where the
tribal right to possess and control remains and items is clear
immediately upon discovery. The written plan that must be
developed by the Federal land manager under the regulations assumes
the right of an excavator to perform various analyses in regard to
the items unearthed during an indeterminate period before the
remains or objects are disposed of in accordance with the custody
section of the regulations. 43 C.F.R. 10.5(e)(4), (5) and (9).
Since 43 C.F.R. 10.6 builds significant delays into the process of
relinguishing possession of remains or cultural items to a tribe
even where the tribe with the reguisite interest is clearly known,
a tribe's ownership or control interest will not prevent excavation
or analysis of remains and items that may be offensive to the
tribe.

This practice of some museums and the procedures for imbedded
materials in the regulations are not consistent with the protective
intent of NAGPRA. When NAGPRA was enacted, the Senate Indian
Committee Report explicitly stated that the inventory provision did

not "require museums. . .to conduct exhaustive studies and additional
scientific research to conclusively determine. . .cultural
affiliation." In fact, NAGPRA specifically states that it "shall
not be construed to be an authorization for the initiation of new
scientific studies of such remains and associated funerary objects
or other means of acquiring or preserving additional scientific
information from such remains and objects." Rather, NAGPRA's
intent was merely to require a good faith effort to identify
cultural affiliation based upon presently available evidence. As
stated in the Senate Report, it is not necessary that cultural
affiliation be established with "scientific certainty".

Moreover, in terms of imbedded remains and materials, the
Senate Report indicated that the process in NAGPRA was designed to
provide Indian tribes with "the opportunity to intervene in
development activity on Federal or tribal lands in order to
safeguard Native American human remains... or objects. .. [and in the
context of inadvertent discovery] 30 days in which to make a
determination as to appropriate disposition for these human remains
and objects."

Notwithstanding this clear Congressional intent that NAGPRA
not serve as the impetus for scientific study of remains, it
appears that the inventory process is having that very effect and
that there is great potential that the regulations on imbedded
materials will also encourage more scientific study. It is
essential that Congress take action to rectify this problem.

At a minimum, it should strongly urge the Park Service to

23-074 96-3

develop and circulate an advisory memorandum to all Federal land
managers and museums indicating that scientific study of remains —
particularly those that are likely to be claimed by a tribe based
upon existing evidence — should be kept to a minimum. In
addition, Congress should consider amending NAGPRA to place
limitations upon scientific studies of remains and cultural items —
at least where a tribal claim is likely based upon evidence
existing at the time that a particular scientific study is
proposed.

Repatriation Delays in the Regulations
AIRORF is greatly concerned about 4 3 C.F.R. 10.10(b) (2) of the
adopted regulations. This section appears to prevent any
repatriation of human remains and associated funerary objects until
after a museum fully completes its inventory. Such a restriction
is utterly contrary to the intent of the Act and even the practice
of most museums since the Act has passed. NAGPRA provides an
independent right to repatriation aside and apart from repatriation
rights established pursuant to an inventory and explicitly
disclaims any intent to limit museum authority to repatriate. Yet,
it appears that limiting museum authority to repatriate would be
the result of this regulation. The testimony at the hearing
indicated that 73 museums have reguested an extension of time for
completion of the inventory. Moreover, many museums who have not
reguested an extension have nonetheless not completed their
inventories. It is possible that this provision could prohibit
repatriation in the case of all of these museums.

AIRORF urges Congress to put immediate pressure on the Park
Service to clarify the meaning of this regulation if it does not
mean what it appears to say or to withdraw this provision if it
does. If the Park Service refuses, Congress should immediately act
upon an amendment to NAGPRA which would make clear that inventory
completion is not a prerequisite for repatriation.
The Excessive Cost of Repatriation

AIRORF is also concerned that the cost to tribes of
establishing cultural affiliation and obtaining repatriation of
human remains and cultural items can become excessive. It appears
that this has been a particular problem in some instances with the
Museum of Natural History at the Smithsonian. As a first step to
addressing this problem, AIRORF recommends that Congress sponsor a
dialogue between the Smithsonian and interested Indian tribes and
national organizations. The goal of this dialogue would be to
determine if there are methods or procedures which can be developed
to streamline the repatriation process.

In terms of the Smithsonian, its separate statutory authority
for repatriation may be part of the underlying problem in that the
Museum of the American Indian Act requires cultural affiliation to
be based upon the best available scientific and historical
documentation, but includes no deadline for the completion of an
inventory of remains and funerary objects. Thus, it may be that
subjecting the Smithsonian to the provisions of NAGPRA would result
in a more streamlined repatriation process within that institution.
Nonetheless, NAGPRA itself also has the potential to give rise to

costly disputes. Thus, this proposed dialogue with the Smithsonian
might also serve to identity solutions for reducing costs which
would be more broadly applicable to the repatriation process.
Indian tribes unrecognized by the Secretary of Interior
The definition of "Indian tribe" in NAGPRA refers to tribes
eligible for services provided by the United States, not merely
Department of Interior services. In its original guidelines for
implementing NAGPRA, the Park Service recognized that in addition
to the list of federally-recognized tribes maintained by the Bureau
of Indian Affairs, "other Federal agencies also offer benefits
specifically to Indians". 43 C.F.R. 10.2(b)(2), issued on December
4, 1995, reguires the Secretary to prepare a list of Indian tribes
covered by the Act. The Park Service has indicated that this list
will include only tribes recognized by the Secretary of Interior,
notwithstanding Abenaki Nation of Missiguoi v. Hughes . 2 ILR 3001
(D.Vt.1992) which interpreted NAGPRA in accordance with the broader
approach recognized in the earlier guidelines.

AIRORF agrees with the Chairman of the Standing Rock Sioux
Tribe that NAGPRA should protect those tribes which are not
recognized by the Secretary of Interior, but which nonetheless
"maintain a responsibility toward their ancestors and their items
of sacred and cultural patrimony." Congress should urge the
Secretary of Interior to include all tribes which receive funding
from any federal agency on the list which he is developing pursuant
to the regulations and take appropriate legislative action if the
Secretary fails to do so.

The need for adequate federal funding
Numerous witnesses at the hearing expressed their concern that
inadequate funding could thwart the efforts of museums to comply
with NAGPRA and limit the ability of tribes to take advantage of
the opportunities that the Act provides. In the five years since
NAGPRA was enacted, AIRORF has observed a significant change in the
relationship between museums and Native Americans — tension has
often given way to a more understanding, cooperative relationship
as NAGPRA-prompted interactions have taken place. It would be
tragic if this unique intercultural opportunity were to be lost due
to a lack of funds to implement this landmark legislation. Thus,
we support the requests for $10 million for NAGPRA funding made by
a number of the witnesses at the hearing.

The future treatment of culturally unidentifiable remains
AIRORF fully endorses the NAGPRA Review Committee's
preliminary recommendation that " [u] ltimately, decisions about what
happens to the [culturally unidentifiable] remains of Native
American individuals from anywhere in the United States and
associated funerary objects should rest in the hands of Native
Americans." The inclusion of associated funerary objects in its
proposal is a particularly welcome and important part of the
recommendation by the Review Committee. AIRORF urges Congress to
provide such legislative authority as may be needed to effectuate
this worthwhile goal.

AIRORF' s board, staff and consultants have a great deal of

expertise in the field of repatriation and include traditional
Native Americans, social science and legal experts and individuals
with lengthy and diverse museum experience. AIRORF would be more
than happy to share this expertise with the Senate Committee and
work with the Committee in any way that the Committee might find
helpful.

AIRORF is greatly appreciative of the Committee's ongoing
interest in ensuring that the NAGPRA is fully and successfully
implemented.

TESTIMONY OF

CECJL F. ANTONE, LIEUTENANT GOVERNOR

GILA RIVER INDIAN COMMUNITY, ARIZONA

BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS

REGARDING THE NATIVE AMERICAN GRAVES PROTECTION AND

REPATRIATION ACT

DECEMBER 6, 1995, WASHINGTON, D.C.

The Gila River Indian Community (the "Community") is honored to provide
testimony before the Senate Committee on Indian Affairs on the implementation of the Native
American Graves Protection and Repatriation Act ("NAGPRA"). I first express my personal
thanks and the appreciation of the Community to Senator McCain and Senator Inouyc for their
dedication and devotion in causing the passage of NAGPRA. Indian tribes now have the legal
authority to repatriate their cultural and spiritual items. The Community is especially thankful for
the authority because Pimas and Maricopas of the Community, in compliance with our respective
traditions, feel every effort must be made to repatriate our ancestors to their homeland.

The Community, over the last three years, has received more than 150 letters
from various museums and federal agencies regarding the disposition of collections as required by
the Act. There is an obvious need for the regulations mandated by NAGPRA to be promulgated
as Indian Tribes throughout the United States are now grappling with the sometimes complex
repatriation issues. The Community and other O'Odham tribes, the Salt-River Pima-Maricopa
Indian Community, the Ak-Chin Indian Community, and the Tohono O'Odham Nation have
developed pragmatic and effective understandings and agreements with federal agencies for
consultation and mediation of specific archeological properties. Our most recent agreement was
with the United States Air Force and involved funerary objects and human remains on the land
where Williams Air Force Base was formerly located. The closure of Williams Air Force Base

Testimony of Cecil F. Antone, LL Governor Page 2 of 3

Gila River Indian Community

near our Reservation caused us to act to protect the funerary objects and remains We recognize
that NAGPRA has not been fully implemented and we urge this Committee make every effort to
cause the complete implementation of NAGPRA.

The Community does have a positive history and experience in repatriation of
human remains and funerary objects. This has occurred through our efforts and in accordance
with the laws of Arizona. Since 1989, the four O'Odham tribes have reburied more than 3,000
ancestors. The Community has established a relationship with the Arizona State Museum based
on mutual respect and this has resulted in a high degree of cooperation in the repatriation of
human remains and funerary objects. However, one of the difficulties that Indian tribes face is
the lack of physical resources to house collections as the collections are transferred and received
from museum institutions and federal agencies. Federal funds were not identified in NAGPRA
and the current restrictions on federal funding makes it difficult to develop and construct the
necessary facilities to house collections. It is apparent that Indian tribes must develop
partnerships with federal and state agencies. The Community has taken steps to enter into
cooperative agreements with governmental entities. For instance, in November 1995, the Bureau
of Reclamation agreed to develop and construct a repository to house all Central Arizona Project
archeological material collected during the construction of the Project. The repository will be
located on Community lands. As part of our commitment to this agreement, the Community will
be utilizing its resources to support and fund this repository.

We are deeply thankful for the opportunity NAGPRA has presented so that we
arc able to maintain our cultural traditions We also intend to continue to maintain the

Testimony of Cecil F. Antone, Lt. Governor P»ge 3 of 3

Gila River Indian Community

relationship and partnership with federal agencies. The Pimas and Maricopas of the Community
view NAGPRA and its eventual implementation as an extremely significant step in assisting Indian
nations to properly care for their ancestors. This is an important step in assuring cultural stability
for generations to come.

I thank you for this opportunity to comment on implementation efforts regarding
NAGPRA, and I will respond to any questions you may have.

'Keepers
of the

'Treasures 340 ° s p ,,na " ) Ro,tJ

Suite 4
j+x Anchorage. Alaska

*$* 99503

Ph. 907 • 258 • 2844
F*. 907. 258 -4373

Alaska

STATEMENT TO THE UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS

REGARDING THE STATUS OF IMPLEMENTING THE

NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

December 18, 1995

Prepared by Ellen Bielawski, Ph.D.

Executive Director and NAGPRA Project Director

and Directors of KTA

Note: The author is not a native person, but has written as "we",
having been directed to prepare this summary of the board's
comments and her archaeological and museum experience.

Keepers of the Treasures Alaska (KTA) is an Alaskan native
non-profit organization supporting the efforts of Alaskan native
people to reclaim, revitalize and perpetuate their diverse cultures
and languages. KTA' s Board of Directors is comprised of one
representative of each of the 12 regions established under the
Alaska Native Claims Settlement Act, one at -large member, and one
ex officio liaison member of the national Keepers of the Treasures.
KTA members represent all of Alaska's native and non-native people
and live all over the state.

Currently KTA holds a grant from the Administration for Native
Americans to assist four (4) Alaskan village councils undertaking
repatriation.

We submit these comments in support of some of the testimony
presented on December 6, 1995, with the addition of specifically
Alaskan perspectives on NAGPRA.

KTA urges Congress to appropriate at least $10 million in
FY1996 for implementing NAGPRA. In Alaska, NAGPRA and the required
summaries and inventories went to organizations unprepared to act
on the opportunity NAGPRA represents for returning ancestral
remains and healing the wounds caused by their removal . In many
cases, there are no human nor financial resources to write the
grant proposals required for accessing NAGPRA funds available to
federally-recognized tribes and organizations. KTA undertook to
assist villages in implementing NAGPRA precisely because so many
villages in Alaska lack even the resources to access the funds that
would allow them to learn about and implement NAGPRA.

It should also be recognized that while costs are high
everywhere, there are generally much higher in Alaska than in the
Lower 48 states. Under NAGPRA, native people must visit some
museums to work with museum staff on repatriation. Most of th^
villages, and the burial grounds from which ancestral remains were
taken, are not accessible by road. Distances between museums and
villages, even within the state, are long. This means that any
travel associated with NAGPRA, as well as the shipment of
repatriated remains and objects, will be more costly than

elsewhere. Similarly, costs of communication are higher than
elsewhere, by phone, fax, e-mail and so on. Because many Yupik and
Inupiat Elders speak only their native language, interpretation
costs are substantial, especially when addressing words, concepts
and issues that do not translate comfortably across the cultural
boundaries between museum staff and native people.

KTA also strongly suggests that Congress address the question
of native peoples and organizations not formally recognized by the
federal government. In the words of an Alaska Keeper: "it didn't
matter. . .when the human remains of non-f ederally recognized Indian
tribes were taken... it irks me that living human beings are
technically not in existence merely because the U.S. Government
does not recognize them." We feel that carrying out repatriation
only through federally-recognized entities goes against the spirit
of NAGPRA, and the empowerment and healing it is to foster among
native americans.

In Alaska, the Corporations created under ANCSA are federally-
recognized. Both regional and village corporations have received
abundant museum summaries and inventories. Yet for many, the
initiative required to implement NAGPRA is far outside the scope
and interests of corporate, profit-making activities. The parallel
non-profit native organizations are chronically overburdened and
always struggling to stay in touch with their members across large
areas. NAGPRA needs to be addressed both regionally and locally. In
some cases, local cemeteries were excavated and large numbers of
individual remains taken. In others, the summaries and inventories

indicate very dispersed remains with affiliation by region at best.
At present, however, there is little NAGPRA activity dedicated to
integrating regional and local cases. The emphasis on federally-
recognized tribes works against the notion of everyone in a region
working together to repatriate large, discrete collections of human
remains and remains from across and region, often more widely
dispersed throughout museums. At present NAGPRA and implementation
funding emphasize federally-recognized entity consultation with
museums; a truer treatment of our ancestors would recognize that we
are all their descendants and that we should work together on
bringing our people home. This need is especially great concerning
the repatriation of culturally unafilliated remains (see Alaska
Federation of Natives Resolution 95 - 59) .

We are very concerned that some museums and institutions
(including the Smithsonian Institution which, while not subject to
NAGPRA, should be) continue to engage in studies of human remains.
Our experience suggests that museums and institutions may attempt
to carry out work with our ancestors' remains that they call
documentation and we know is at best against our expressed wishes
and at worst profane (See Alaska Federation of Natives Resolution
95-61, attached) .

Parallel to the power the federal government holds to
recognize the tribes and organizations with repatriation rights
through NAGPRA is the power museums and institutions hold under
NAGPRA to determine what is sacred. This can only be twermined by
Native American spiritual leaders. While NAGPRA is not directly

concerned with sacred places, only sacred and religious objects, it
does apply to tribal and federal lands. Greater protection of
Native American graves and otherwise sacred places, is required
outside of tribal and federal lands. For example, one multi-
jurisdictional dispute currently allows marked native graves to
serve as lawn ornaments ostentatiously visible to tourist and local
traffic along a heavily travelled highway just north of Anchorage.

Museums and other institutions are allowed to access to tribal
confidential information, but no controls are in place to keep such
information confidential. This is common sense violation of a
fundamental intellectual property right. The information belongs to
the tribes, and anyone desiring or requiring use of it must do so
only in accordance with the wishes, agreement and informed consent
of the people whose knowledge it is .

We thank you for the opportunity to address these concerns in
testimony before the Committee. We trust that you will address
these and the concerns of others brought to your attention. In the
attempt to balance the budget, Congress seems to look primarily at
dollars, cash flow, interest payments, and debt. The United States,
and the museum, ethnology, anthropology, medical and other
scientific and arts communities owe a huge debt to American
Indians, Native Hawaiians and Alaskan Natives. This cannot be paid
simply in dollars. If NAGPRA is adequately supported and carried
out with goodwill and the continued spiritual guidance that brought
us this far, the healing can begin in earnest. Only in working
together towards healing the relationship between native people and
the United States will the debt be forgiven.

75
aiaska rosntATXON or mayxvss

IMS JUQTOJO. COMVBMTIO*
KKSOLOTIOH 95-61 ..

TITLE: ORGXHQ THB KATCOHAJL MMBBM 07 — w— m i i wm

SKTraeOBlAH IK8TITCTS TO ABSPBCT HDAT&XaTXOH CUnMW

MOBBMi wa, ctM Mbm of fetal Alaska aaeiva Lu ssni H ty.
inrokincr tha divlaa blnssiaa of tha Cnttor oven our
af f OCfea and parposs to support tha ladlonnoos pa o pl—
of Alaska la mclaialno, wHtiHring and parpataafeiag
oar ai'varaa oa l feur aa and lanQuaaasf and.

, of tha Alaska natlvt
s up po r t and assist tha prasarvation,
raritallsation of tha past and
llfanays uaiqua to hnarloan Indians
aativa ■swaiiansi and.

moBUM* Public haw 101-188. otharwlaa knoan as tbs "Jf*** / 1 **
of tha las 1 1 it 1 1 Indian Aot stataa la f a sti wi 11

providing for tha torsnfcory . -

of mdian Manna Ananias and X**^*«??W «*•«*• J»

thn^oasasslon of tha — ithsonian Instit ution that tha

■aithsonian -...upon tha monaet «T tha _
sash Individual or of tha ***** _*g*^^
aspaditiously ratarn snob i a s s In s Ituiiatnar wicn aur
assoeiatad fanarary objaota) to tha dnsoondants or

trlha"! and

lansAft it is aridant that par tha »tJnna3 ***** 9 L m SSSi
History, polioy antitlnd ■Po ea as nt s H ™ J** , ** n
skalatal Aonains- datad JUna 17, J*'\ ***%*£ £
astabllah prooadnras for ldantlfyinc tha Pl«c«_«;
orioin of huana ranaias, has iastaad allowad additional
Z37 'I ^ZZZ. TsaiTir raoardlass of ah s th s r thosa
^S^JS^Sx^l^^^SS!^ to origin and
plana for purpose* of rapatriationi and.

it la laonahant apoa aa as tha
•aoastral ranaias -bauson- at tha
natural history to
aathoritiaa and liaaal _
additional d uuu aai ifr s Hmi of

ALASKA P8DBRATION OP SATrVHS

1995 MURAZi COMVaWTXOMT

RKSOLOTICar 95-59

TITLB: REPATKIATIOR AMD DX8VOSXTXCM OT OMXBBRirXBD ALASKA

BDMAM REMAINS ABO ASSOCIATE) PTFKBSABT OBdSCTfl

wa, tha anbtri of tha Alaska Sativa oowwml ty,
tnvolduoo tha di-riaa blaaslap of tfca Cxaatozr wpon our
af forts and pnrpoaa to aaaport tte iadlosaoas paoplaa
of AUtkt la raolaialocr, ra^taliaiag atf porpataatlaa
oar dlToroo ealtums and laa gnasas I sad*

as MM— Hi ■! ■ osT tno alnate aatlwa mwmfty %*• will
— M pa act and assist tte prsa«r»ation, aaiwr a wano a and
rawitaliaation of tte past «ad pnmk cultural
lifaways aaloao to Anarlean Indians, Alaska aatlvas aad
Htetiv* wawallans; aad.

nadar Public Xaar 10l-«0i tha aatlva an s Hrun Ocavaa
rrotactlon aad — parrlarton act (Bflm) sad J"** 1 * Ji*
101 .us tte Kationai — a na of tte i wrin i ii : Indian act,
tha 1 ml I ■Minim in— mil 1— of Alaska will bar* tha
opportunity to datamina tha final dlaposifion of any
or all nntdonftflad aaoostaal teaam r iai I ns , aloao with
any funerary ofcjooto loeatad la araauaa, onlrarsitlaa^
oollosos aad oollaotloaa t han a ateat tte Oaltad Itatasi

m*t that; tte Alaska Vadoratlon of
Katies supports tte fomation of a statewide *******
ttoa to explore aaaas for tte flaal dlaposltloa of
uaidentlf lad Alaska and/or mi ni ■ la s 11 aaoastral

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TESTIMONY OF ELIZABETH BLACKOWL, PRESIDENT OF

THE PAWNEE TRIBE OF OKLAHOMA, BEFORE THE SENATE

INDIAN AFFAIRS COMMITTEE, DECEMBER 6, 1995

Good morning, Chairman McCain and respected members of the Indian Affairs Committee. My name
is Elizabeth Blackow! and I am the President of the Pawnee Tribe of Oklahoma. Thank you for the opportunity
to offer testimony before this committee on behalf of the Pawnee Tribe regarding the implementation of the
Native American Graves Protection and Repatriation Act of 1990 ("NAGPRA").

NAGPRA ranks among the most important Native American human rights laws ever enacted. NAGPRA
establishes national guidelines and procedures for federally funded museums and federal agencies to repatriate
important cultural items to appropriate Native American tribes and people. Mr. Chairman, NAGPRA can and
has worked. Since 1 989, the Pawnee Tribe has repatriated and reburied well over one thousand ( 1 ,000) human
remains and funerary objects under state and federal laws.

The reinterment of our ancestors in accordance with Pawnee traditions has been an important activity
for our entire Tribe. For example, Senator McCain, we were deeply moved by your presence at the ceremonies
held at Ft. McNair last June, when the remains of six Pawnee Scout U.S. Army veterans were repatriated, with
your assistance, from the National Museum of Natural History for reburial in Nebraska with full military honors.
The repatriation and reburial of these war dead with the assistance of the Defense Department's Office of
Casualty Affairs gave the true meaning of NAGPRA to the Pawnee, Arikara and Wichita people who attended
the reburial services in Genoa, Nebraska; and we continue to appreciate your efforts to see that those veterans
were laid to rest with the dignity and honor that they deserved.

However, NAGPRA implementation efforts are expensive and time-consuming and could be improved
by our nation based upon five years of experience with the important law. Indeed, similar to the civil rights
legislation and policies of the 1960's which are still being implemented today, NAGPRA will take years for our
Nation to fully implement, because NAGPRA addresses a widespread national problems. Hopefully, through
the good will efforts of this Committee, Indian tnbes and museums, we can strive to improve implementation
efforts.

Toward that end, I highly commend the Committee for its hard work in passing NAGPRA in 1990 and
for holding this oversight hearing in 1995 to see how the law is working from the perspective of affected Indian
Tribes and museums. I hope my testimony regarding Pawnee experiences and recommendations will be of
assistance to the Committee and to the museum and Indian communities.

My testimony covers three areas: First, I will discuss the background of Pawnee repatriation efforts
since 1989. Second, I will raise some concerns or problems which our Tribe experienced in implementing
NAGPRA. And, third, I will respectfully offer some recommendations to address the concerns which we
encountered, for the Committee's consideration.

BACKGROUND OF PAWNEE NAGPRA IMPLEMENTATION EFFORTS.

Like many Indian Tribes, the Pawnee Tribe was historically subjected to massive disturbances of tribal
cemeteries and burial grounds. Additionally, many important Pawnee cultural items or patrimony, such as
important communally owned ceremonial bundles, left tribal hands over the years - especially in 1 892 - 1934
period when traditional Indian religions were banned by the Federal Government -- under questionable
circumstances. Much of this sad history was presented to this Committee in 1989 and 1990 in support of the
passage of NAGPRA and the National Museum of the American Indian Act ("NMAIA") and will not be repeated
in my testimony today. Needless to say, the Pawnee Tribe joined Indian country in strongly supporting the
passage of NAGPRA and NMAIA, because these were greatly needed laws to protect the religious sensibilities,
equal protection and property rights of the Pawnee people.

Since 1989, the Pawnee Tribe has been heavily involved in repatriation and reburial activities under state
and federal repatriation laws. Almost eleven hundred (1,100) deceased tribal ancestors and associated funerary
objects have been reburied to date in four separate reburial ceremonies conducted in our aboriginal homeland
of Kansas and Nebraska. Because of the large scope and complex nature of these efforts, the Pawnee
government established a Repatriation Committee to work with tribal members, elders, experts, legal counsel
and museums. Our efforts have been supported by the legal work and experts of the Native American Rights
Fund (NARF:) without which the Tribe would not have been able to accomplish these tasks.

While repatriation is an expensive and time consuming task for our hard-pressed, impoverished tribal
government, the Pawnee Tribe has deeply appreciated its opportunity to successfully carry out this work, because
of the extreme importance of reburying our dead.

Mr. Chairman, let me just briefly summarize the four reburial experiences of the Pawnee Tribe since,
1989, prior to sharing our concerns and recommendations. The first three reburials occurred under state laws;
and the fourth reburial occurred under NAGPRA and the NMAIA which my testimony and recommendations
will focus on.

As to the state law repatriations, the first took place in the Spring of 1990, when the Pawnee, Ankara
and Wichita people reinterred approximately 170 common ancestors (dating from AD. 1000 to 1400) in Salina,
Kansas, pursuant to a special Kansas state law. Later in 1990, the Tribe reburied approximately 400 Pawnee
Indians (dating from AD. 1550 to 1875) in a cemetery at Genoa, Nebraska, under the provisions of the Nebraska
Unmarked Burial Sites and Skeletal Remains Protection Act of 1989 (Neb. Rev. Stat. Sees. 12-1 209-1 2 11). The
third reburial occurred in 1991, when the Tribe reburied about 125 Pawnee Indian (dating from A. D. 1000 to
1400) near McCook, Nebraska. These dead had been in the custody of the Nebraska State Historical Society
and were repatriated and reburied under the provisions the Nebraska state law. All of these state law reburials
were based upon tribal repatriation claims which pre-dated the passage of NAGPRA.

The fourth reburial occurred in June of 1995, when the Pawnee, Arikara and Wichita people reburied
approximately 400 human remains and associated funerary objects in a mass grave near Genoa, Nebraska,
according to tribal rites and with military honors for some of the deceased who were U.S. Army veterans. These
dead were repatriated from four state and federal museums under the provisions of NAGPRA and the NMAIA.
More specifically, three hundred and seventy (370) human remains and associated funerary objects came from
the Nebraska State Historical Society; twenty eight human remains (including the remains of six U.S. Army
Scout veterans) were from the National Museum of Natural History and National Museum of Health and
Medicine (Department of Defense); and two human remains came from the American Museum of Natural
History, located in New York.

The human remains from the National Museum of Natural History (NMNH) were repatriated under the
NMAIA as part of a claim that was initiated in 1988 and a portion of which is still pending,-seven years later,
on a appeal recently decided by the Smithsonian Institution's Native American Review Committee in the very
first appeal before that Committee under the NMAIA. I wish to highly commend Dr. Russell Thorton and the
Native American Reveivv Committee for its timely, efficient and even handed treatment of our appeal and attach
a copy of it's decision to illustrate the expense and complexity of repatriation claims under the NMAIA from
the perspective of the Pawnee Tribe. The 372 remains from the other three museums were repatriated under
NAGPRA.

All of the above efforts resulted in the reburial of the desecrated remains of tribal relatives in accordance
with Pawnee traditions, which, of course, relieved great stresses among our people and afforded us with the
respect and satisfaction of laying our dead to rest - which were foremost among Congress' goals when it enacted
NAGPRA and the repatriation provisions of the NMAIA. However, achievement of these intended goals was

done only at great financial costs in the face of unnecessary delays and obstacles, which are discussed more
below.

For example, just in the past 12 months alone, the Native American Rights Fund spent $51,456 63 on
attorney time, expert fees and travel expenses to repatriate the 28 human remains (including U.S. Army veterans)
from the National Museum of Natural History and to win the attached appeal which is still pending at the
Smithsonian under the NMAIA. Moreover, during the same period, NARF was also forced to expend
52120,869.83 in legal, expert and travel costs to repatriate the 370 remains under NAGPRA from the Nebraska
State Historical Society, the American Museum of Natural History and the National Museum of Health and
Medicine. In addition, the Pawnee Tnbe bore at least $7,500 in costs and expenses associated with the actual
repatriation and reburiaJ of these 400 remains. Of these $80,000.00 in costs, which are staggering to small
Indian Tribes, the Pawnee Tribe was awarded a 1995 grant from the National Park Service of only $7,500 to
cover a part of the reburial expenses; and I just wonder how other Tribes are able to implement without access
to NARF or other resources?

CONCERNS AND RECOMMENDATIONS.

Based upon the above experiences in implementing NAGPRA and the related federal repatriation
provisions of the NMAIA, the Pawnee Tribe has experienced the following problems or concerns and offers
accompanying recommendations for each:

1. LACK OF FEDERAL FUNDING:

The lack of federal funding seriously hampers tribal repatriation efforts. The
Pawnee Tribe has applied unsuccessfully to the National Park Services for
appropriate funding in the past but was denied. The sole funding received was
the inadequate $7,500 amount in 1995, for which we are extremely grateful in
partial relief for the $80,000 which was expended by NARF and our impoverished
Tribe. For example, our Repatriation Committee estimates the need for at least
$70,000 per/year for staff, consultants and travel to implement potential
NAGPRA claims, which we are presently unable to do. We are not alone 1
understand from my attorneys that in FY 94 and FY 95 the National Park Service
received 337 proposals from Tribes and museums totalling $30 million dollars for
NAGPRA implementation, but was only able to fund 83 grants for $4.3 million,
which leave a whopping $25 million dollar gap.

This gap is likely to increase in the next 1 2 months due to the museum inventory
deadline, which will spark increased NAGPRA implementation activities. Thus,
it is clear that funding must be significantly increased to implement NAGPRA
from the S2.3 million dollars that is proposed at the present time.

RECOMMENDATION: Because even the best laws can be nullified by failure
to fund necessary implementation measure, 1 strongly recommend full tribal
funding for NAGPRA as originally intended when the law was developed and
enacted, in the amount of 10 million dollars annually..

LACK OF NAGPRA REGULATIONS:

The unexplained failure of the Secretary of the Interior to promulgate regulations
to implement NAGPRA by November 16, 1991, as required by 25 U.S.C. 301 1
has contributed to confusion, delay and excessive costs for Tribes in
implementing this law. For example, some of our delay and legal cost in
repatriating the 370 remains from the Nebraska State Historical Society is
attributed to confusion about the Secretary's powers and duties to publish museum
notices of intent to repatriate in the Federal Register under 25 U.S.C. 3003(d).
I understand that on the eve of this hearing the Secretary has or will publish the
final rules in the Federal Register and our attorneys have not yet had the
opportunity to review or analyze them.

RECOMMENDATION: We recommend that the Committee hold the record
of this hearing open for a sufficient period in order to afford Tribes with the
opportunity to offer the Committee their comments on the adequacy of the final
regulations.

EXCESSIVE MUSEUM DELAYS. STUDIES AND "DOCUMENTATION"
CAUSES PROTRACTS TRIBAL CLAIMS AND INCREASES TRIBAL COSTS:

The seven year old Pawnee repatriation claim against the Smithsonian's National
Museum of Natural History, which is still pending under the NMA1A, is a classic
case of excessive delays, studies and "documentation" which has resulted in
excessive tribal delays and costs ($51,456.63) in NARF attorney time, expert
costs and travel). In this case, it was common for months to pass before tribal
letters were answered. The NMNH initially stated that it only had two Pawnee
remains. Rather than accept this initial finding, the Tribe had to hire its own
independent consultants (two historians, one archivist, an archeologist, NARF
attorneys) who differed from the museums's experts. The Tribe's experts
subsequently demonstrated that approximately 80 remains are properly subject
to the Tribe's claim -- including six U.S. Army veterans, but only after

voluminous and expensive work in rebutting the many studies conducted by
NMNH staff and consultants.

During the period, NMNH staff conducted radiocarbon studies of Pawnee
remains housed on loan at the museum without seeking tribal consent or giving
notice of this destructive and intrusive study. Outside consultants were hired by
the museum without tnbal notice or input who conducted voluminous studies
without tribal involvement, including full-blown and unnecessary physical
anthropological studies of the remains that entailed all sorts of measurements
which were not pertinent to the claim.

After all these studies, the Tribe was still forced to take an appeal to resolve a
dispute over a portion of its claim, which it ultimately won in the attached
opinion. Had the Tribe accepted the initial museum assessment that only 2
Pawnee were in its collections, the Tribe would have left almost 78 ancestors to
languish forever in museum vaults. It is clear to me that Indian Tribes must be
well equipped with ample legal and expert resources to engage in protracted work
with the NMNH or face the prospect of losing many culturally affiliated ancestors
who should otherwise be repatriated to the Tribes under the NMAIA.

RECOiMMENDATIONS: The Committee should strongly encourage the NMNH
and other museums with similar practices to:

1) refrain from excessive delays (which I define as more than 10
days after receipt of a letter from a Tnbe) in corresponding with
Indian Tribes.

2) refrain from conducting excessive, unduly expensive and time
consuming new studies regarding repatriating claims, especially
full blown anthropological studies under the guise of
"documenting" or "inventorying" the remains at issue, unless
requested or agreed to by the Tribe.

3) meet with Indian Tribes for the purpose of identifying better ways
to streamline and expedite claims and make them less technical
and expensive for Tribes, including improved consultation
procedures.

Mr. Chairman and members of the Committee, this concludes my testimony. On behalf of the Pawnee people,

please accept the gratitude of our Tribe for your past, present and future leadership in this important human

rights issue. The Pawnee Tribe stands ready to assist the Committee in any way possible as it continues its

review and assessment of federal repatriation issues. Thank you.

RECOMMENDATIONS REGARDING THE DISPUTE BETWEEN THE PAWNEE TRIBE

OF OKLAHOMA AND THE NATIONAL MUSEUM OF NATURAL HISTORY

REPATRIATION OFFICE OVER THE STEED-KISKER PHASE

HUMAN REMAINS AND FUNERARY OBJECTS

Submitted October 10, 1995 to Secretary I. Michael Heyman
by the Smithsonian Institution Repatriation Review Committee

-ii^^^i & 2J^^ : ^ LxJma. (j. [Um^

Russell Thornton, Chair Andrea A. Hunter, Vice Chair

<**a^*j\:

Roger Anyon Lynne Goldstein Christy G. Turner II

The Smithsonian Institution Repatriation Review Committee met
at the Brown Palace Hotel in Denver, Colorado, on September 14,
1995, to consider the dispute between the Repatriation Office and
the Pawnee Tribe of Oklahoma regarding the Steed-Kisker Phase human
remains and funerary objects held at the National Museum of Natural
History.

The remains and objects in question represent a minimum of
fifty-three (53) individuals (in nineteen [19] sets) and one
hundred and. seventy- eight (178) funerary objects. They were
obtained from three archaeological sites- -the Steed-Kisker site
itself, the Nolan C "mound" and the Shepherd "mound" --in Missouri
during 1938 and 1939 by Waldo Wedel of the Smithsonian Institution.
The Steed-Kisker Phase dates from about A.D. 1000 to about A.D.
1250 .

The dispute between the Pawnee Tribe of Oklahoma -and the
Repatriation Office concerned the cultural affiliation of the
Steed-Kisker Phase human remains and funerary objects. The Pawnee
Tribe had requested repatriation of the human remains and funerary
objects based on the belief that a preponderance of available
evidence indicated that the Steed-Kisker Phase is culturally
affiliated with the Central Plains Tradition and the Pawnee Tribe.
The Repatriation Office disagreed with the Pawnee Tribe based on
the belief that the Steed-Kisker Phase could not be assigned a
cultural affiliation until further studies were conducted.

3
The Pawnee Tribe was represented by Walter Echo-Hawk, of the
Native American Rights Fund and the attorney for the Pawnee Tribe;
Roger Echo-Hawk, a consultant for the Native American Rights Fund
and the Pawnee Tribe; Charles Lonechief, Chairman of the Pawnee
Repatriation Committee and member of the Business Council of the
Pawnee Tribe; and Vance Horsechief, a member of the Pawnee Tribe
Repatriation Committee. The Repatriation Office was represented by
Thomas Killion, Director; William Billeck, case officer; and Lauryn
Grant, attorney for the Smithsonian, representing the Repatriation
Office. The Repatriation Review Committee was represented by all
five members- -Roger Anyon, Lynne Goldstein, Andrea Hunter, Russell
Thornton and Christy Turner- -as well as Gillian Flynn, Repatriation
Review Committee coordinator.

The Committee met with Pawnee and Repatriation Office

representatives from approximately 9:00 A.M. to 12 noon and from

approximately 1:00 P.M. to 3:00 P.M. During this period, oral

summaries were presented by both sides and both sides resp'onded to

inquiries posed by individual Committee members. The Committee

then met in an in camera session from approximately 3:00 P.M. to

5:00 P.M. During this period, we assessed existing evidence as

presented orally and in previous written documentation. Based on

this evidence, we formed conclusions regarding the cultural

affiliation of the Steed-Kisker Phase. We then formulated three

recommendations to Secretary Heyman (via Provost Hoffmann)

regarding repatriation of the Steed-Kisker Phase human remains and

objects. Our recommendations were unanimous and consensual.

4
Recommendation One
The Repatriation Review Committee unanimously recommends that
the Steed-Kisker Phase human remains and funerary objects be
repatriated to the Pawnee Tribe of Oklahoma.

The Committee concludes that a preponderance of the existing
evidence indicates a cultural affiliation of the Steed-Kisker Phase
with the Central Plains Tradition. The Central Plains Tradition
has been previously shown to be affiliated with the contemporary
Pawnee, as represented by the Pawnee Tribe of Oklahoma. (Such
other contemporary groups as the Arikara of the Three Affiliated
Tribes of the Fort Berthold Reservation and the Wichita and
Affiliated Tribes are also affiliated with the Central Plains
Tradition.) We conclude that evidence derived from house-type,
settlement pattern, geographic location, and oral traditions
indicate a cultural affiliation of the Steed-Kisker Phase with the
Central Plains Tradition and the Pawnee. We conclude that ceramic
evidence indicates a probable cultural affiliation other than the
Central Plains Tradition for the Steed-Kisker Phase. We conclude
that it is not possible to establish any specific cultural
affiliation for the Steed-Kisker Phase using available evidence
derived from biological data, mortuary practices, subsistence, or
tools. Thus, of the nine types of existing evidence examined, data
from four indicate an affiliation with the . Central Plains
Tradition, data from one indicates an affiliation other than the
Central Plains Tradition, and data from four are inconclusive in
establishing affiliation. This is a clear preponderance of the

5
evidence in favor of a Central Plains Tradition cultural
affiliation for the Steed-Kisker Phase.

The existing evidence we examined and our assessment of it are
presented in detail below.

Ceramics

Ceramics of the Steed-Kisker Phase are, for the most part,
shell tempered, have sunburst designs on their shoulders, and are
jars with low rims, in contrast to Central Plains Tradition
ceramics that are mostly grit tempered, rarely have designs on
their collars, and are predominantly low to high rimmed with
thickened lips that are referred to as collars. Although the
shell temper, the designs, and the shape of Steed-Kisker ceramics
are, on the whole, much more like Middle Mississippian than Central
Plains Tradition ceramics, some Steed-Kisker ceramics are grit
tempered, and no Steed-Kisker ceramics have been found at Cahokia.
Some shell tempered ceramics have occasionally been found on
Central Plains Tradition sites, however. Even so, because the
technological and stylistic differences between Steed-Kisker Phase
and Central Plains Tradition ceramics are readily apparent in the
vast majority of the excavated ceramics, the Committee believes
that ceramics in the Steed-Kisker Phase are indicative of cultural
affiliation with groups other than the Central Plains Tradition.

Geographical Location

Steed-Kisker Phase human remains and funerary objects at the

6
National Museum of Natural History were obtained from three
locales: the so-called Steed-Kisker site itself, the Nolan C
"mound, " and the Shepard "mound, " all in present-day northwest
Missouri, along the Missouri River and its tributaries. Other
identified Steed-Kisker Phase sites are located to the north,
south, east and west (across the Missouri River in Kansas) of the
three locales. This area lies roughly between the cities of Kansas
City and St. Joseph, Missouri. The locations of the various phases
of the Central Plains Tradition- -the Itskari, Nebraska, Smoky Hill,
St. Helena and Upper Republican- -are to the north and west of this
geographic area. The location of the Nebraska Phase of the Central
Plains Tradition is along the Missouri River, extending south of
St. Joseph to the Sugar Creek Ossuary. Sites in this specific
area- -Sugar Creek and Cloverdale--may be classified as Nebraskan
Phase, but contain clear elements of Steed-Kisker Phase as well.
Thus there is actual geographical overlap between the Nebraska
Phase and the Steed-Kisker Phase in the area to the south of
present-day St. Joseph, Missouri. The Committee acknowledges this
geographical proximity, adjacency and even overlap as important
evidence indicating an affiliation of the Steed-Kisker Phase with
the Nebraska Phase of the Central Plains Tradition.

House Form

Steed-Kisker Phase house forms are variable, as evidenced by
the presence of earthlodges with four interior support posts,
rectangular houses with four post roofing systems, a square

7
ceremonial structure, and a partial wall trench house. The
diagnostic type house form, used by archaeologists as a
taxonomically identifying feature of the Steed-Kisker Phase, is the
rectangular four interior post structure. Even though some authors
have attributed this style to Middle Mississippian cultures, the
four interior post earthlodge is characteristic of the Central
Plains Tradition, and wall trench structures are more clearly
associated with the Middle Mississippian culture. Excavated Steed-
Kisker Phase structures total ten: six rectangular houses, two
earthlodges, one (possible) ceremonial structure, and one partial
wall trench house. Given the clear presence of Central Plains
Tradition-style earthlodges and rectangular structures in the
excavated archaeological record of Steed-Kisker Phase sites, the
Committee believes that the preponderance of house -form evidence in
the Steed-Kisker Phase suggests a cultural affiliation with the
Central Plains Tradition.

Mortuary Practices

Mortuary data for the Steed-Kisker Phase are incomplete, with
few detailed records.

The. Repatriation Office outlines two primary pieces of
evidence regarding mortuary practices at the Steed-Kisker Phase
site cemetery: one, most burials are in an extended position; and,
two, cemeteries were laid out in semi-circular rows. Both patterns
are reminiscent of Middle Mississippian Tradition cemeteries in
Illinois, with neither pattern similar to the Central Plains

8
Tradition. Although we do not question this observation, the
patterning at the Steed-Kisker Phase site was not compared to the
within-site pattern at Central Plains Tradition sites.

Conversely, the Pawnee argue that the lack of status
differentiation in .the cemetery is more representative of the
Central Plains Tradition than of societies of the Middle
Mississippian Tradition. The Pawnee note also that extended
burials have been found in Central Plains Tradition sites, even
though most Central Plains Tradition cemeteries are ossuaries.
Furthermore, ossuaries are a secondary disposal practice, and
bundle burials which represent such practices have been found at
Steed-Kisker Phase sites. These observations are also correct;
however, Mississippian Tradition cemeteries associated with small
villages often have little status differentiation, and secondary
disposal practices were common in Mississippian Tradition
societies. Furthermore, the lack of detailed descriptions for both
Steed-Kisker Phase and Central Plains Tradition cemeteries makes
detailed within-site comparisons impossible.

Extended burials, secondary disposal of the dead, cemeteries,
and lack of status differentiation do not, therefore, suggest one
affiliation over another. (More analysis and more detailed
examination of the within-site patterning of mortuary sites would
be needed to do so.) The Committee concludes that the significant
variability in mortuary practices by many groups during the time
period in question makes it difficult to assess the existing
mortuary data as indicating the affiliation of the Steed-Kisker

Phase with one tradition over another.

Oral Traditions

Oral traditions presented in the Pawnee Tribe's response to
the National Museum of Natural History's report on the Steed-Kisker
Phase and at the Repatriation Review Committee's hearing in Denver
were extremely important and very helpful in interpreting the
archaeological record. The oral traditions indicate two major
Caddoan groups within the Steed-Kisker Phase which are ancestral to
contemporary groups, some becoming Arikara (from the west side of
the Missouri River [represented by the Calovich site] ) , others
becoming Pawnee (from the east side of the Missouri River) . The
oral traditions also indicate the formation of the Pawnee out of
diverse peoples. For example, the Skidi Pawnee scholar James R.
Murie recounts Pawnee oral traditions of the South Band Pawnees --
the Pitahawirata, the Chaui and the Kitkahahki--indicating
ancestors- -the Kawarakis--who lived in the Nemaha rdgion of
southeastern Nebraska (the area of the Nebraska Phase of the
Central Plains Tradition) . These traditions indicate also that a
group ancestral to the Kitkahahki moved south, out of the Nemaha
region. This migration seems to have been to the Steed-Kisker
Phase area east of the Missouri River, with the Sugar Creek Ossuary
being a possible cemetery site. Oral traditions also indicate
origins from the American Bottom, around Cahokia at the junction of
the Missouri and Mississippi Rivers, for the other Pawnee bands.
The Committee finds the oral traditions presented to offer a

10
compelling argument linking the Steed-Kisker Phase to the Central
Plains Tradition and contemporary Pawnee (and Arikara) ,
particularly when used in conjunction with the archaeological
evidence .

Physical Anthropological Evidence

The craniological (metric and non-metric) studies that were
involved in the Steed-Kisker Phase repatriation case are either
inadequate to the issue at hand, or they are methodologically
flawed for identifying affiliation' in any statistically significant
manner, or even with the unscientific preponderance of evidence
criterion. With respect to inadequacy, no assessments were made
for the biological affinity of populations to the east of the
Steed-Kisker Phase sites, namely Cahokian and Cahokian-outliers .
This should have been done since these populations have been long
linked on ceramic grounds with the Steed-Kisker Phase, and should
have been included in the matrix for affinity assessment.'.

As for being methodologically flawed, Steed-Kisker Phase sites
yielded only two measurable crania. There is no known statistical
procedure that could have made a meaningful affinity assessment,
given the probable variance in Plains cranial measurements and non-
metric features. Moreover, the amount of environmental influence
on cranial variation in the Plains has never been estimated. It is
well known that within-group body and cranial dimensions change to
some degree through time with changes in diet and other factors.
This sort of secular change has been well documented in other

23-074 96-4

groups. Plains groups could be craniological similar due to
similarities in their environments during cranial growth and
development, rather than being similar due to very similar genetic
backgrounds. The latter could have been estimated using dental
morphology. In sum, the craniological data do not support the
Pawnee case, nor do they support the Repatriation Office. These
data are, for the present, inadequate and therefore irrelevant.

Settlement Patterns

Settlement data include kinds of sites and site locations in
relation to one another and to the landscape. While it is true
that the dispersed settlement patterns reported for the Steed-
Kisker Phase area more closely resemble a Central Plains Tradition
pattern than a Middle Mississippian Tradition pattern, it is also
true that no one has conducted systematic archaeological surveys in
the Steed-Kisker Phase region. Because no systematic or even
widespread surveys have been done, it is not possible to. make an
informed conclusion about settlement patterning in general.
Nonetheless, there is evidence for one kind of site that does
support a Central Plains Tradition affiliation over a Mississippian
Tradition one for the Steed-Kisker Phase: platform or pyramidal
mounds have not been found in the Steed-Kisker Phase area or at
Steed-Kisker Phase sites. Since such mounds are commonly and
usually associated with Middle Mississippian Tradition settlements,
the lack of these mounds is both notable and significant. Although
it is true that no systematic archaeological surveys have been

conducted, it is very common for most mound sites to be known.
Platform mounds are visible, were regularly recorded by Euro-
American settlers and by both amateur and professional
archaeologists, and were a major focus of investigative activity in
the late 19th and early 20th centuries. While we would not be
surprised if several mounds or mound groups in a region were
missed, we note that if there were platform mounds in the region,
it would be extraordinary to have had none reported at all. Since
several specific Steed-Kisker Phase sites have been excavated and
no evidence of platform mounds documented, it must be concluded
that, to some degree the lack of these mounds reflects what was
actually present. This represents a pattern more likely expected
in Central Plains Tradition settlements. Thus, settlement data
favor a Central Plains Tradition affiliation over a Middle
Mississippian affiliation for the Steed-Kisker Phase in this
respect.

Subsistence

The subsistence economy of the Steed-Kisker Phase is in
accordance with the general horticultural/agricultural strategies
practiced by cultures utilizing plains and woodland environments.
Early investigations of archaeobotanical remains from Steed-Kisker
Phase sites report the presence of Zea mays (corn) , Helianthus
annuus (sunflower) , Cucurbita pepo (squash) , Juqlans nigra (black
walnut) , Carva sp. (hickory nut) , Corvlus americana (hazelnut) , and
Carva illinoensis (pecan) . More recent studies have included

1.3

fragments of Phaseolus vulgaris (common bean) from Steed-Kisker
Phase sites. The presence of P. vulgaris has been discovered at
Central Plains Tradition sites, but not at Cahokia. This has been
suggested as evidence for shared group identity between the Steed-
Kisker Phase and the Central Plains Tradition. However, the
similarities in subsistence patterns between the two is really a
result of successfully adapting to a similar environment. p_^
vulqaris fragments have been recovered from contemporaneous
Mississippian Tradition sites (Olin and Hill Creek) in Illinois, as
well as Oneota Tradition sites in Missouri, Illinois, Wisconsin,
and Iowa. Subsistence is thus of no use in determining
differential affiliation between the Steed-Kisker Phase and Central
Plains, Mississippian and Oneota Traditions.

Tools

Bone tools from Steed-Kisker Phase sites include awls made
from deer ulna fragments, worked deer mandibles and various worked
antler fragments. Such bone tools have been recovered from Central
Plains, Middle Missouri, Middle Mississippian and Oneota Tradition
sites. Therefore, they are of no diagnostic use here.

Stone tools from the Steed-Kisker Phase include both flaked
artifacts (e.g., projectile points, knives, scrapers and drills)
and ground stone artifacts (e.g., abrading stones and disk
fragments) . Projectile points described by Wedel are similar in
form to Huf faker, Harrell, and Cahokia projectile points. Huf faker
points are found throughout the Plains from Oklahoma northward to

14
the Dakotas and as far east as Illinois. The suggested age range
is from A.D. 1000 to A.D. 1500. Harrell points are widely
distributed in the Great Plains from northern Texas to Canada to
east to the Mississippi River valley to west to southwestern and
northwestern states. The suggested age range is form A.D. 1100 to
A.D. 1500. This point type is similar to, if not identical with,
the Cahokia point of the Mississippi River valley. The Cahokia
point is found in Illinois, Iowa, Wisconsin, Missouri, northern
Arkansas and eastern Oklahoma. These points are found in most
Mississippian affiliated sites along the Mississippi River and
along Caddo-Mississippian trade routes. The Cahokia point ranges
in age from Early to Late Mississippian, first occurring around
A.D. 900.

The knives from Steed-Kisker Phase are generally ovoid in
shape or retouched chipped flakes and spalls. Scrapers are
described as of common snub-nosed or plano-convex types. All of
these flaked stone and ground stone artifact types have been
recovered from Central Plains, Middle Missouri, Middle
Mississippian and Oneota Tradition sites. Thus, they, too, are not
useful in locating the Steed-Kisker Phase in one of the traditions.

Recommendation Two
The Committee recommends that reasonable expenses involved in
the actual return of the Steed-Kisker Phase human remains and
funerary objects be covered by funds allocated to the Repatriation
Office for repatriation purposes.

15
The Committee assumes that the Pawnee Tribe of Oklahoma has
encountered some financial expenses in bringing their appeal to the
Repatriation Review Committee. Consequently, we wish to have the
repatriation of these human remains and objects take place without
any additional undue financial burden to the Pawnee Tribe.

Recommendation Three
The Committee recommends that a letter stating an intent to
repatriate Steed-Kisker Phase human remains and funerary objects to
the Pawnee Tribe of Oklahoma be sent to the approximately one dozen
contemporary American Indian tribes that may be potentially
affiliated with the Steed-Kisker Phase (as determined by the
Repatriation Office) , and that these tribes be given a sixty-day
(60-day) opportunity to make a claim for the Steed-Kisker Phase
human remains and objects and to provide supporting evidence to the
Repatriation Office.

The Committee notes that cultural affiliation of the Steed-
Kisker Phase with traditions other than the Central Plains
Tradition and with contemporary American Indian peoples other than
the Pawnee (and the Arikara and Wichita, whom the Pawnee have
represented in other disputes) are possible. The Committee also
notes that National Museum of Natural History Repatriation Office
guidelines specify notification of all parties with a potential
interest in human remains and objects that are being considered for
repatriation. This notification may be through newspapers,
newsletters and other news media. In this instance, a letter sent
directly to relevant tribes is also appropriate. The Committee
stands ready to assist the Repatriation Office by reviewing the
letter before it is sent, and by assisting in the resolution of any
disputes which might arise.

UNIVERSITY OF CALIFORNIA, LOS ANGELES

BERKELEY-DAVIS ■ IRVINE • LOS ANGELES • RIVERSIDE • SAN DIECO • SAN FRANCISCO

UCLA

SANTA BARBARA ■ SANTA (

AMERICAN INDIAN STUDIES CENTER

3220 CAMPBELL HALL

BOX 951548

LOS ANGELES. C A 90095- 1 548

(310) 825-7315. FAX 206-7060

December 10, 1995

Senator John McCain, Chair
Senate Committee on Indian Affairs
838 Hart Building
Washington, D.C. 20510

Dear Senator McCain,

I would like to submit the following testimony to your December 6, 1995 Committee hearing on
repatriation.

The clear intent of the NAGPRA is to repatriate as broadly as possibly to the American Indian
community. Sec. 2(7) defines "tribe" as any community or group that is "eligible for the special
programs and services provided by the United States to Indians because of their status of Indians."
This intent is obstructed by the imposition, in the 1993 Regulations, of the definition of "tribes" as
those groups having received formal recognition by the BIA. We strongly urge you to amend the
proposed rules to reflect the original intent of NAGPRA to include the service population of
Indians, as generally defined in the Snyder Act of 1921. The Snyder Act is used by many Federal
agencies, for example, the Indian Health Service of the Department of Health and Human Services,
(IHS), as the criterion for a definition of membership in Indian tribes and groups.

Given the specific historical circumstances of California Indians relations with the Federal
government (namely the existence of 18 treaties which promised over 8 million acres to California
Indians, signed in 1852 by tribal representatives and Federal agents, but never ratified by
Congress), the intent of NAGPRA will not be served in California by the imposition of the BIA
definition of tribes and groups. The IHS promulgated expansive criteria lor California Indians in
1988 amendments to the Indian Health Care Improvement Act of 1980. In those amendments,
Congress defined eligible "California Indians" to include members of federally recognized tribes,
holders of trust allotments, and distributees under the California Indian land settlement and their
descendants, regardless of their geographic residence within the state. The IHS calculated the
service population of California Indians in 1991 at 88,675; the BIA calculation for the same year
was only 36,51 1 . The IHS has been authorized to designate slates, counties, and towns as "Health
Service Delivery Areas," rather than reservations, where reservations are nonexistent or so small
and scattered and the eligible Indian populations widely dispersed that it Ls inappropriate to use
reservations as the basis of defining the Health Service Delivery Areas.

Using the criterion of membership in Federally recognized tribes disproportional disadvantages
California, which has the largest percentage of Indians from unacknowledged tribes in the nation.
Many, or perhaps most, unacknowledged California Indians are descended from individuals who
were on the judgment roles for land claims cases involving the 1852 treaties with California Tribes.
Although these individuals have one or more forms of federal certification of their status as
Indians, they are not eligible for BIA benefits under contemporary standards because their tribal
groups are not acknowledged. Likewise, this excluded population is not benefiting from

100

NAGPRA; remains and cultural artifacts from virtually every county of California are being
determined to be affiliated with tribal populations presently representing only a small fraction of
the indigenous social and geographical areas of the state.

Only by using the broader service population definition of Indian tribes and groups will
repatriation be carried out fairly according the intent of NAGPRA. The service population
definition is legal and consistent with the policies of other Federal agencies, and will be more
inclusive and just Importantly, the service population criteria will avoid the legal entanglements
that will certainly arise as a result of the BIA tribal recognition stipulation in the Regulations.

The imposition of BIA criterion of recognized tribes has seriously distorted the process of
determining cultural affiliation. Therefore, in addition to redressing the problem of defining the
Indian populations having standing under NAGPRA, we urge you to address the related problem of
determining cultural affiliation. The statistics of the IHS, California State agencies, as well as
ethnographic consultation, have clearly demonstrated that many Indian families belonging to
unacknowledged groups in California still reside in or near their traditional locales, and still have
strong social and familial associations with those locales. The affiliation with a specific locale is
often ethnographically unrecognized, or if recognized, overridden by accepted anthropological
designations of cultural affiliations. The self-identification of cultural affiliation on the part of
indigenous Califomians exists as mutually recognized geographical and genealogical contiguities.
Many Indian people are currently being cut out of the repatriation process, not only because they
are not members of formally recognized tribes, but also because their own definitions of cultural
affiliation do not accord with those of scholarly ethnography and archaeology.

For example, the term "Chumash" derives from self-identificauon of the people living on Santa
Cruz Island, which has been applied to apparently linguistically and culturally related ecological
locales, or "provinces". We know that the dialects spoken in these ecological regions within
Chumash territory were very distinct, possibly, some linguists believe, mutually unintelligible.
Within the cultural area known as "Chumash" to anthropologists, there are seven distinct, self-
identified socio-cultural groups. "Cultural affiliation" for many "Chumash" individuals is not what
anthropologists and archaeologists understand as the similarity of "Chumash" material cultural
traits, rather their ethnic and cultural identity is more complex network of genealogical, historical
and social associations which are fundamentally underlain by a powerful contiguity with a specific
locale, or ecological region. Some indigenous individuals living in "Chumash" territory prefer to
call themselves by their regional names, most strongly identify with regional lineages. These
strong aspects of geographical contiguity in the self-definition of ethnicity are often overlooked by
anthropologists who for the sake of convenience, and because of historical contingencies, use both
too broad categories of cultural affiliation and too narrow categories of genealogical links, negating
intimate, important cultural affiliations with locales and the historical, social persistence of familial
and clan level affiliations. Much of the evidence of the persistence of ethnic/cultural affiliations
are in the form of oral histories which are not explicitly "cultural" in content, but recount
continued, often seemingly informal, social associations of families in the generations since contact
Also, the geographic boundaries of the locales - watersheds and topographical features - can be
described by many consultants in very minute detail. This knowledge is sometimes attributed by
anthropologists to contemporary cultural resource management strategies. However, in many
locales elders not involved in cultural resource matters have similar knowledge, and also share
convictions about the importance of extended families and locale in determining cultural affiliation.

101

Under the current NAGPRA law, remains from any ecological locale in the "Chumash" cultural
area determined to be affiliated with "Chumash" culture would repatriated to the Santa Ynez
"Chumash", the only band having a reservation and Federal recognition. The Santa Ynez
reservation represents a small fraction of the total "Chumash"" population, (roughly two hundred
individuals on the reservation out of several thousand total). While individuals from many
"Chumash" clans live, or have lived, on the reservation, the larger Santa Ynez area itself represents
one of several distinct "Chumash" regions, overlapping with the reservation in complex ways.
There is an implicit, and sometimes explicit, acknowledgment on the part of individuals on the
Santa Ynez reservation that human remains from other locales properly fall under the jurisdiction
of the families associated with those locales, yet the Santa Ynez "tribe" currently has the final say
in the disposition of the remains, and other bands of "Chumash" are completely dependent on the
present good will of the Santa Ynez for the recognition of their own wishes concerning the return of
their ancestors taken from other regions. Analogous, but even less fortunate, situations exist in
other places in California.

The inverse of the "Chumash" situation is that of the Luiseno where one "tribe" is represented by
several different reservations. Each reservation considers themselves to constitute a Luiseno band.
The socio-cultural affiliation of each reservation tribal council is based on specific ancestral,
familial territories larger than the reservations themselves. Specific Luiseno bands apparently have
no interest in the repatriation of remains from the territories of other Luiseno bands. UCLA will
presumably consider repatriating specific remains to one of the Luiseno bands/reservation
claimants, Pechanga, rather to the "tribe" itself, even though cultural affiliation will probably be
determined as "Luiseno" for lack of any more specific ethnographic designation. There is not now,
and was not elhnohistorically, any overarching political or social organization representing a
Luiseno "tribe", even though the Luiseno bands shared very similar linguistic dialects, and share a
common designation derived from the Spanish mission at San Luis Rey. Different historical
circumstances combined with the BIA criteria of the NAGPRA regulations have created the
illusion of a single, overarching "Chumash" tribal entity/cultural affiliation, making repatriation a
quite different process there than it is in Luiseno territory.

Dealing with the determination of cultural affiliation on the level of locale and families rather than
"tribes" will make the process of repatriation more feasible and less contentious, as well as more
accurate and just. For example, remains from the Los Angeles basin can potentially be claimed by
Gabriel ino/Tongva individuals from five or six separate Gabriel ino/Tongva communities. Under
the current proposed regulations, remains from the Los Angeles basin determined to be associated
with the Gabrielino /Tongva are culturally "unidentifiable", with the possibility of repatriation to
the unrecognized Gabrielino Tribal Council based in San Gabriel (but not to specific families or
communities), or on the principle being used in "Chumash" territory, to the Luiseno as BIA-
recognized Takic speakers of a similar Uto-Aztecan dialect. (Gabrielino and Luiseno dialects may
have had the same or greater degree of intelligibly than some of the closer "Chumash" dialects.)
Most Luiseno and Gabriel ino/Tongva individuals find neither of these possibilities a satisfactory
resolution for repatriation, rather they recognize and prefer the protocol of affiliation based on
locale.

Instead of viewing the Gabrielino communities as "factions" which need to form a consensus before
repatriation can occur (a virtual impossibility, according to some), we can view these communities
as bands of Gabrielinos in the same way Luiseno individuals identify five bands and "Chumash"
seven. Gabrielino communities are also groups of families, associated with specific locales, and
the cultural affiliation of specific remains could be determined accordingly. The imposition of a

102

tribal name upon geographically widespread "Gabrielino" communities may fit a handbook
definition of cultural affiliation, but does not reflect the persistence of more diverse social and
geographical ethnic self-identifications. Not surprisingly, this self-identification is the most likely
basis of consensus for all of the involved parties.

As a final example of the unnecessary difficulties caused by both B1A tribal recognition criteria
and the implicit ethnographic assumptions about cultural affiliation, there is an individual who is
claiming cultural affiliation with an heretofore unrecognized, unnamed Southern Channel Island
ethnicity. This individual is enrolled as both a Luiseno and Gabrielino/Tongva. He claims, and
most archaeologists and ethnographers agree, that the Island people formed a separate ethnicity
while intermarrying with both Luiseno and Gabrielino people. He also claims that some Island
people survived and have remembered their Island ethnicity on the mainland over the last 150
years, and that his elderly ancestors substantiate this claim. However, this individual and his
relatives, even as enrolled members of recognized and unrecognized Indian groups, presently have
no standing under NAGPRA. His claim is a critically important one given the magnitude of
archeological collections from the Southern Channel Islands. His oral history has met initially with
mild to extreme skepticism from anthropologists who have a knowledge of the ethnohistorical
records of the coastal areas. But his testimony also potentially contributes to the evidence for the
persistence of regional affiliations, and reciprocally, if the importance of Native understandings of
regional contiguity are taken into serious consideration in the consultation process in NAGPRA,
this testimony could be sympathetically received, given its due weight as evidence, and potentially
substantiated by ethnohistorical research.

NAGPRA clearly stales that expert opinion and Native testimony will be given equal weight in
determination of cultural affiliation. If Native testimony and scholarly evidence are truly to be
given equal weight, Native testimony has to be judged on its own terms, and not on implicit, prior
scholarly presumptions about how cultural affiliation will be defined. The evidence shows that
cultural affiliation is maintained in Southern California (and I strongly suspect elsewhere as well),
on a level much more minute and diverse than that recorded in the ethnographic record, and that
these cultural affiliations with very specific and regional locals have persisted against great odds
for the last several hundred years.

The difference between Native testimony and scholarly documentation is often cast as the
difference between "science" and "religion". Native testimony does not only represent different
spiritual beliefs, but also represents different intellectual theories about cultural affiliation.
Academic definitions of cultural affiliation represent different, but not inherently more empirical,
understandings of cultural affiliation. Objectivity concerning cultural affiliation can be rendered
only within an inclusive field of knowledge. This is especially the case for the cross-cultural
cooperation required by NAGPRA.

The negotiation of a consistent, inclusive definition of cultural affiliation is a difficult task, but one
which should not be avoided any longer. The interpretation of the implicit intent of NAGPRA rests
on the definition of "cultural affiliation". If the expressed goal of NAGPRA is to involve local
Native participation in die repatriation process on an equal basis with NAGPRA institutions and
expert opinions, the Review Committee should explicitly define "cultural affiliation" by including
specific Native understandings of "cultural affiliation." Obviously, this should be done in
conjunction with Native consultation, and should draw on what has been learned in the nationwide
consultation process for the NAGPRA Inventory and in the Review Committee hearings. This

103

would be a significant step toward making repatriation a fairly negotiated process, and would also
contribute substantially to the cross-cultural pursuit of intellectual knowledge.

The determination of cultural affiliation on terms other than those of BIA tribal recognition will
avoid the potential legal entanglement of NAGPRA institutions from federally unrecognized
claimants, both immediately and in the future. The descendants of indigenous people of this state
persist in knowing who they are, where they belong, and what belongs to them; imposing tribal
entities and boundaries that violently cut across their contiguous cultural affiliations will probably
not go uncontested.

Sincerely,

Duane Champagne

Director, American Indian Studies Center

104

TESTIMONY REGARDING PROCEDURES TO IMPLEMENT NAGPRA

PUBLIC LAW 101-601
SU8MITTED TO THE SENATE COMMITTE ON INDIAN AFFAIRS

By Darrell Drapeau .Chairman , Greg Bourland, Secretary ,
Dakota Territory Chairmans Council
December 18, 1995

Chairman McCain and Members of the Committee, thank you for giving us the
opportunity to comment on the procedures to implement the Native American
Graves Protection and Repatriation Act, Public Law 101-601, commonly referred
to as the NAGPRA. The Dakota Territory Chairmans Council has instructed Darrell
Drapeau, Chairman of the Yankton Sioux Tribe, and myself, Greg Bourland,
Secretary of the Council and Chairman of the Cheyenne River Sioux Tribe, to
submit the following testimony about this very important Act on behalf of the
Dakota Area Tribes. Our council was formed by our respective tribal
governments to establish a strong and unified voice among the tribal
leadership, which in turn represents tens of thousands of enrolled members,
we have been closely following the work of the North Dakota Intertribal
Reinternment Committee and today wish to submit testimony which supports
the issues they have been raising with the regulatory process to implement
the NAGPRA.

Since the appointment of the NAGPRA Review Committee, we have had serious
concerns regarding the implementation of NAGPRA and have followed the process
closely. Although Assistant Secretary Ada Deer gave us her written promise
that she would not sign off on the proposed final regulations until such time
that they were published again and received another public comment period,
she did not keep her promise. We were told by her staff that she was
"pressured" into signing off on them only a short while before the
Oversight Hearing, scheduled to investigate our problems with them, was held.
Because of this, we are faced with the very grave decision of looking to the
courts for relief. Members of the Committee, we do not undertake this
decision lightly, but before we are forced to act upon it, it may be that you
can do something to ameliorate the serious concerns we raise before you now.

Before we go any further, however, we are compelled to refer to a directive
given by President William Clinton over two years ago. In this Executive
Proclamation on Indian Affairs, President Clinton stated, "The United States
is bound by a special trust relationship, requiring the Congress, the
President, and all entities of the federal government to assure that the
'good faith shall always be observed toward the Indians,' as provided for
in the North West Ordinance of 1781 .... legal documents shall be interpreted
liberally in favor of the tribes and as the tribes would have understood
them." Further, "The United States shall forever continue to respect and
protect the government-to-government relationship with American Indians and
Alaskan Native tribes, a relationship principle that historically has been
a cornerstone of this nation's offical Indian policy" and finally, "The
United States shall support and assist American Indian and Alaskan Native
tribes in exercising broad sovereign tribal authority over all places, persons,
property and even with their territorial jurisdiction..."

105

Senators, we submit that the final regulations, as currently written,
redefine Indian tribes, Indian sovereignty, and Indian policy. In our review,
the problems inherent in the final regulations represent a major Indian policy
change successfully conducted through the regulatory process.

Chairman McCain and Members of the Committee, from the many letters our
tribes have written each of you, you are all well aware of the serious issues
we have raised surrounding the regulatory process. We maintain that tribes
were not represented, had little opportunity for input, and the issues we did
manage to raise were ignored. The law, through regulatory language, has been
gutted of its protection to tribes. More than that, major Indian policy
changes have successfully been manipulated through the regulatory process.
We are gravely concerned, and we are outraged that nothing was done about our
concerns when changes to the regulations could have been made through a second
publication and comment period that we have been seeking for nearly two years.
When our requests for an Oversight Hearing were finally honored, however,
the regulations were "hustled" into the final stage, thus ensuring that once
again, Indian people will have to live with a law that does not protect our
interests, does not do what Congress promised it would do for us, and forces
us to the courts to protect our rights and that of our deceased ancestors.

Chairman McCain and Members of the Committee, we want you to see what it is
tribes will have to live with, now that reinterpretations of the law have been
finalized in the regulations.

* The regulatory definition of tribal lands strips tribes of their right
to exert jurisdiction over any and all persons and lands within their
exterior boundaries. This reinterpretation will create serious problems
for those tribes who have fee patent lands within their boundaries and
is in direct violation of current Indian policy and the Act itself.
Again, we refer you to President Clinton's Executive Proclamation on
Indian Affairs to see for yourselves where Secretary Babbit, in
finalizing this version of regulations, failed to extend good faith and
insure the federal government's trust responsibilities to tribes.

* The regulatory definitions of "possession" and "control" reinterpret
language which was meant to act as a protective device for insuring that
the temporary possession of items by museums did not result in an illegal
transfer, but they have now been changed to mean "have a legal interest
in". This reinterpretation of the Act will have far reaching, negative
effects for tribes, because we must now, in addition to proving that we
are related to our dead relatives, also prove that the museum has no
"legal interest" in them. Who, besides their descendants, could be said
to have a "legal interest" in our dead? In our view, this unethical
reinterpretation establishes the concept of "ownership" of our dead,
their personal belongings, and our sacred property. We submit that this
is something Congress did not intend when NAGPRA was passed. Because no
one listened to us, however, we tribes will have to live with this "theft
by regulation" until we can produce the uncertainties for tribes. We
further submit that we did not support and work hard for the passage of
NAGPRA so that we could bring home our dead relatives and sacred property
by way of courts, we worked hard for this law because we were told it
would keep us out of court.

106

Statutory language is silent regarding the repatriation of human remains
incorporated into other cultural items, such as a war shirt decorated
with human scalps. The law has not been interpreted liberally in favor
of the tribes nor as we would have understood it, as accepted Indian
policy requires. The final rule ignores our values about our own property,
which should inform all decisions about repatriation, and as a result,
the regulations prevent the repatriation of human remains incorporated
into other items. This is an excellent example of how many decisions
were made without the input of tribal leaders, who would have prevented
this misinterpretation of the law and provided protection for our
interests, given the opportunity.

Several key determinations, such as whether or not an item is sacred or
whether or not human remains are affiliated with a particular group,
have been left to the museum and science industries, our most vocal
opponents in repatriation. In the event that tribes disagree with a
museum's decision, their only recourse after informal negotiations is to
go to court. Once again, we submit that we did not participate in the
passage of this law only to find ourselves in court, year after year, in
order to bring our relatives and sacred property home. Moreover, had the
tribes been granted more access to the regulatory process itself, we
could have offered our expertise and guidance on matters that are more
property within our purview than that of museums': we are the experts on
our relatives and sacred property, not the museums, yet our knowledge
and expertise have been effectively excluded from the realm of
decision making - we are only allowed a consultation after museums have
made their decision. Finally, federal agencies and museums have seemingly
endless resources to support a legal defense in the event a tribe
disputes their decision, however, that is not the case with impoverished
tribal governments who are having trouble funding lif e-and-death
initiatives back home, such as preventing elders from freezing to death
by providing the minimum standard of housing. This places the tribes at a
unfair advantage, Senators, when all museums have to do is say " No ",
and tribes have to decide between bringing a lawsuit or watching tribal
members join the ranks of the homeless.

Discussions at the Oversight Hearing of December 6,1995 included proposed
amendments to the Act. In addition, there are several sections of the
Act for which proposed regulations were placed in " Reserved " status,
and announcements have been made that these proposed regulations will
soon be published in the Federal Register. Developing amendents to the
Act and proposed regulations for the Reserved Sections are two important
opportunities available to the Senate Committee to insure improved tribal
participation and protection of our rights. Chairman McCain and Members
of the Committee, the Dakota Territory Chairmans Council hereby officially
requests that you direct Secretary Babbitt to include coalitions of
regional, tribal NAGPRA representatives in all deliberations regarding
amendments to the Act and proposed regulatory language for the Reserved
Sections. Had such an attempt been made with the Final Regulations before
us today, we would not have to be writing to you to complain about the
serious problems in those regulations. A directive from your committee,
we feel, will be highly effective in assuring that tribes are not again
left out of the loop in these important deliberations, and will also
insure that discussions are carried out for the purpose of creating
consensus, and not protecting the interest of the science and museum
industries, which will in turn enable this most important Act to do what
it was intended to do.

107

* The problems with the regulatory process to implement the NAGPRA are not
new : the near-total lack of tribal input, representation and ability to
protect our sovereign rights is a struggle we have lived with for over
five hundred years. Therefore, the Dakota Tribal Chairman's Council
hereby officially requests that the Senate Committee on Indian Affairs
begin negotiations with ours and other intertribal councils to develope
legislation to create a new method whereby consensus and meaningful
representation of tribes can be included in all proposed regulatory
language written to implement laws affecting Indian tribes. Our problems
will change only when the system changes, and not before.

Chairman McCain and members of the Committee, we are grateful to you for
the opportunity to present our views and problems for your consideration and
action. Please accept this testimony in the spirit in which it was given --
we only want the law to do what it was intended to do, and that is to bring
home all of our relatives, all of their personal burial belongings, and all
of our sacred and cultural property. You can see that we are not asking for
anything unreasonable. All we want is to revitalize our nations and our
communities, to bring life back to our people. 8y helping us, you will have
enabled us to do this wonderful thing for our relatives and for the countless
generations yet unborn. We look forward to your response to this important
testimony and to the requests we have made therein.

Sincerely

Q~MO,

Darrell Drapeau, cnairman

Dakota Tribal Chairman's Council and

Chairman, Yankton Sioux Tribe

Greg Bourland, Secretary

Dakota Tribal Chairman's Council and

Chairman, Cheyenne River Sioux Tribe

108

*2*± THE

Is NAVAJO
NATION

December 18, 1995

WRITTEN TESTIMONY OF NAVAJO NATION REGARDING THE IMPLEMENTATION OF
THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT
SUBMITTED TO THE SENATE COMMITTEE ON INDIAN AFFAIRS BY ALAN DOWNER,
DIRECTOR, NAVAJO NATION HISTORIC PRESERVATION DEPARTMENT

The Navajo Nation would like to begin by expressing its
appreciation to the Committee for the opportunity to comment on the

implementation of the Native American Graves Protection and
Repatriation Act (Act) . The Navajo Nation was a strong and active
supporter of the Act throughout its labored development and
enactment. As the Navajo Nation's lead agency for matters that are
subject to the Act, the Historic Preservation Department has been
active both in the development of the Act and in its implementation
from the outset.

The Navajo Nation has had generally favorable experiences with the
implementation of the Act. It is the Historic Preservation
Department's impression that the museums and federal agencies with
which it has dealt have been pursuing the mandates of the Act in
good faith, attempting as best they can to comply with both the
letter and the spirit of the law. The Historic Preservation
Department has had dealings, in one form of another, with over 280
museums so far. We have yet to find a single instance where we
felt that the museum was stalling or attempting to some how or
other avoid compliance with the Act.

While the Navajo Nation's overall experience has been generally
positive, we do believe that there are several issues of which the
Committee should be aware.

1. It is clear that the deadlines contained in the Act are
totally unrealistic, especially in light of the Administration's
and Congress' apparent reluctance to provide ample funding for the
grants program created by the Act. Neither the Tribes nor (we
suspect) the Museums have the requisite fiscal resources to deal
properly with repatriation.

The preparation of inventories is time consuming and costly.
Review of the inventories is equally time consuming, especially
when the Historic Preservation Department must deal with over half
of the museums which have filled inventories. The inventories are
based largely on existing accession records, which may or may not
accurately reflect what the collectors and/or curators thought they

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AND REPATRIATION ACT
December 18, 199S

had collected. It is clear from the Historic Preservation
Department's experience that the collectors/curators may or may not
have really known what they had. Accordingly, the Historic
Preservation Department has made it a practice to examine
collections in person rather than to rely on the inventory
description as a basis for beginning repatriation activities. The
inventories simply alert the Historic Preservation Department to
the fact that a museum has Navajo material in its collections. The
Historic Preservation Department must then begin to make a
determination of whether or not the collection contains any Navajo
materials that should be repatriated.

This entails sending staff to museums, sometimes for extended
periods to examine collections and determine, what if any material
constitutes Navajo sacred or ceremonial items and cultural
patrimony. This can be very costly. But we have no other option
if the Navajo Nation is to obtain return of those items which
really should be returned to the Nation and put back in use in
traditional ceremonies or otherwise appropriately treated.

The Navajo Nation believes that a minimum of $10 million must be
appropriated to fund grants to Tribes. Anything less than that
amount is simply totally inadequate to meet the minimum Tribal
needs to expeditiously complete the processes established by the
Act and its implementing regulations.

2. It appears to the Navajo Nation that the definition of Indian
Tribe in the Act may be too restrictive. The Navajo Nation
supported the Act both because it sought to have Navajo items of
cultural patrimony returned to the Navajo Nation. But the Navajo
Nation did not view this issue in the narrow light of Navajo
interests alone. Instead, the Navajo Nation recognized that this
is a matter deeply affecting all Native Americans and the Navajo
Nation's involvement with these issues has always conducted
recognizing this larger context.

The purpose of the Act is to ensure that Tribes can obtain the
return of human remains and items of cultural patrimony which are
inappropriately in the possession of museums and federal agencies.
The Navajo Nation has always understood that the principal purpose
of the Act was to promote rapid repatriation of such materials to
the proper Tribe. It appears that there may be Tribes which are
excluded from this process because they do not have federal
recognition. While we believe it may be premature to seek
amendments to the law at this time, we do think that the Committee

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AND REPATRIATION ACT
December 18, 1995

should continue to monitor this issue and consider seeking to amend
the Act, if it becomes clear that this issue is a serious problem.

3. Our experience indicates that there are a number of portions
of the Act, which were drafted very carefully to resolve a very
specific problem which have been found to have unintended or
otherwise negative consequences. For example, Congress has created
a property right in human remains and vested that right in Tribes
and/or individual Native Americans according to a carefully
specified priority listing. Creating a property right and vesting
it Native Americans was probably essential to eliminating the
museums' erroneous claims of ownership rights to those remains they
possessed.

Unfortunately, creation of this right has lead to increased
tensions between some Tribes, which result from conflicting claims
of ownership. Exacerbating such tensions is the fact that
archaeological evidence (of which human osteological data can
sometimes be a part) can figure heavily in litigation pertaining to
land and resources claims of Tribes. In some instances several
Tribes have conflicting claims to land and resources, and a federal
agency's determination of who is the rightful owner of human
remains has the potential to provide evidence to one side or the
other in such a dispute.

At this point the Navajo Nation does not believe that an amendment
to the law is called for. However, we do believe that this is an
issue that should be tracked closely. It may well be the case that
in the future problems arising from these unintended consequences,
may need to be resolved by amending the Act.

4. A federal District Court in Hawaii has ruled that human
remains do not have standing under the Act. In reading the Court's
opinion, it is apparent that in some striking ways Navajo beliefs
are very similar to the Native Hawaiian belief that the spirits of
the dead continue to live, albeit on another plan of existence.
There is communication between the spirit world and the everyday
world of the living. Spirit beings can affect the living and the
living can affect the dead. In Navajo tradition, disturbance of
the dead (of any ancestry) can lead to very serious adverse
consequences for individuals, families, communities or even the
entire Nation. The Navajo Nation, however, agrees with the Court
that the practical difficulties arising from who would "speak" for
the remains would make it all but impossible to apply such standing

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AND REPATRIATION ACT
December 18, 1995

as a practical matter in a federal Court. As a practical matter,
the Navajo Nation believes that the disturbance of the spirits of
the dead can only be dealt with in the appropriate traditional
settings of the people descended from the remains. Furthermore,
the Navajo Nation believes that allowing such standing could well
lead to the sorts of unintended consequences just discussed.

The Congress should not consider amending the Act in this area
unless further experience indicates that this is the only way to
redress abuses of the Intent of the Act.

5. The Navajo Nation notes with some interest the suggestion made
that the Act be amended to provide for some form of "guardianship."
Such a concept has some appeal because it would provide for a
definitive resolution of a number of problems. However, the Navajo
Nation's reading of the Act suggests that in essence (if not in
express language) such a concept is inherent in the Act today.

The Act establishes a clear delineation of ownership of remains
according to an explicit priority listing of ownership. Clearly,
the owners should be regarded as the "guardians." Where a Tribe
declines to assume its rightful role in this regard, the Navajo
Nation does not see that any good can come from arbitrarily
assigning such a role to another party or from trying to impose"
guardianship on a reluctant Tribe.

The Navajo Nation is well aware that some Tribes believe that the
damage caused by disinterment in the first place can not be
remedied. In addition, a number of Tribes believe that the
consequences of attempting to undo the damage already done by
exhumation and "curation" is too dire to even contemplate.

Accordingly, while the Navajo Nation is sympathetic to the concept,
it can not support arbitrary assignment some form of guardianship
to a Tribe or tribal organization beyond the concepts already
embodied in the Act.

6. The Act recognizes that there may be instances when more than
one Tribe makes a claim for repatriation of human remains and/or
items of cultural patrimony. On the surface, the Act provides for
dispute resolution by the agency, the agency must examine the
evidence and make a decision. However, the Navajo Nation finds the
Act ambiguous on this point. On the one hand, agencies are
directed to make a decision based on the preponderance of the

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AND REPATRIATION ACT
December 18, 1995

evidence. On the other hand, agencies are prohibited from
repatriating items while a dispute exists. Finally, federal Courts
appear to have decision making authority, but it appears to the
Navajo Nation that, since the Act provides no real basis for an
agency to make a decision, there is no real way for a claimant to
exhaust the administrative process and then appeal to the Courts
for resolution.

The Navajo nation recommends that the Committee examine the
language pertaining to agency decision making when disputes arise
and consider amending the Act to provide agencies with clearly
delineated authority to reach an administrative decision.

7. Questions regarding the confidentiality of data in the museum
inventories and with respect to any research conducted during their
preparation have arisen as a result of the federal district Court's
ruling in Na Iwl O Na Kupuna Hokapu, et al . vs John Dalton, et
al.

The Navajo Nation believes that the Court has correctly read the
Act and the Freedom of Information Act (together with relevant case
law) . Furthermore, the Court has given balanced consideration of
the issues surrounding the public benefits of disclosure and the
need to protect general information in the inventory and any
associated research from disclosure. As a general matter, the
Navajo Nation sees no need to amend the Act in this regard.

However, the Navajo Nation does believe that there is a compelling
need to protect locational Information from disclosure. Native
American grave sites (both original locations and reinterment
locations) are vulnerable to looters. It is this status as
looters' targets that led Congress to prohibit unpermitted
excavation and trafficking in Native American human remains.
Accordingly, the Navajo Nation believes that an amendment to the
Act be enacted which expressly exempts locational information from
public disclosure under the Freedom of Information Act.

In closing, the Navajo Nation would like to reemphasize that it
appreciates the efforts of Congress, and more particularly this
Committee, to ensure the prompt repatriation of Native American
human remains and items of cultural patrimony. This is an
important and highly sensitive area, the complexities and nuances
of which the Act deals with, for the most part, with great success.
The Navajo Nation urges the Committee to continue to oversee
implementation and to consider carefully limited amendments if and

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AND REPATRIATION ACT
December 18, 1995

when serious implementation problems arise. The Navajo Nation
urges the Committee to carefully consider potential unintended
consequences of the Act and any amendments. The Navajo Nation
believes that implementation of the Act so far has revealed several
such unintended consequences, which may prove serious in the long
run.

The Navajo Nation thanks the Committee for this opportunity to
provide testimony. If the Committee has any questions, wishes to
discuss any of this testimony, or if the Committee feels that the
Navajo Nation can provide any further assistance in furthering the
aim of the Act, please feel to contact Dr. Downer directly.

114

Statement by David C. Holt (Ti' Ped Ki'uun) Nez Perce

on implementing of the Native American Graves Protection and Repatriation

Act, (P.L. 101-601)

In the beginning, Grandfather Creator and Mother Earth blessed we Nez Perce
or Nee Mee Poo. All other Indigenous people were also blessed. The Creator
and Mother Earth provided for all of our relations. I am one of your relations,
we all are related, everything is connected according to Earth Law.

Grandfather Creator placed us in our homelands. We the Red Nations along
with the buffalo, the fish, the birds, the medicines, and all our other relations on
this continent are the Indigenous people. We have always been here on this
continent. The people who have immigrated from other parts of our Mother
Earth now make the laws with their Senate and Congressional Representatives.
They now are the majority, still knowing little about Red Nations and so, still
violating their human rights. Laws made for mainstream society, have made ~
indigenous people suffer worldwide.

Since the first foot-steps of non-Indians on our country Indian Nations have
suffered as people. We are still denied our Religious Freedom from the very
immigrants who came to our lands seeking Religious Freedom. They still
come... Grandfather Creator knows they have amnesia when it comes to so-
called "Law of the Land," or treaties made with Indian Nations. The treaties
and lives of Indigenous people have been broken. We now are victims to the
immigrant's, policies, laws and regulations. We are victims to their Religious
dictates, their attitudes, ignorance and arrogance.

The immigrants hold dearly to their archaeological evidence and theory of
the Aleutian Islands as a land bridge from which the Indians supposedly came.
If this were so, immigrants who now occupy our lands, oppress our people with
their laws, would be rid their guilt for inhumanities inflicted during genocide
against Indian Nations and exploitation of all our relations.

Our ancestors remains, their tools, and beliefs are studied and used against we
descendants. Desecration continues in the use of archaeological evidence
studied^ while immigrants try to rid their guilt, Obviously the evidence is our
ancestor's remains, sadly many are human remains.

Meanwhile our lands are flooded with more immigrants who study our
ancestors, their remains and pay to see them in Federal, state and private
museums and parks, or private and public collections.

Now we must comment on new rules and regulations which deal with
remains of our ancestors. This within government policy dealing with lineal
criteria established by descendants of the immigrants. There have been Non-
Indian and Native champions though. They have helped to provide the Native
American Graves and Protection and Repatriation Act or NAGPRA.

A lack of good faith and a continuation of human right violations existed in
preparation and implementation of the rules and regulations of Monday

115

December 4, 1995 published in the Federal Register . Even though there was a
review committee made up with Native people, without proper funding good
faith flies out the window.

The review committee, in monitoring implementation, consulting with the
Secretary, advising Congress, and facilitating the resolution of disputes lacked
the appropriate funding to provide for adequate results. Disputes should be settled
on behalf of the original people in good faith.

The number of disputes is expected to increase, making it more difficult to
resolve conflicts between museums, Indian tribes, and Native Hawaiian orgi-
nizations. Presently, for instance, the Nez Perce tribe located in the northwest,
has to buy back the remains of their ancestors from a private collection. Their
dispute, caused from the infliction of missionaries upon them from the
government. Now after being stripped by missionaries of their belongings,
who then sold them for under $50.00 Now our people must pay almost
),000.00 for their return.

Almost ten years ago, as an elected official for the Nez Perce, I supported the
contracting of the Nez Perce Historical Park by the Nez Perce tribe. Tribes
already 93-638 contract most Bureau of Indian Affairs programs. The Nez Perce
would manage and run the museum and park centers. The park centers
around Nez Perce history primarily anyway. There is some justification for
the Spalding missionaries life to be cited there, however much of the
inhumanities they inflicted upon the Indians is hidden by present depiction's
and interpretations by the National Park Service.

The grant program initiated in FY 1994 is needed now more than ever to
facilitate reviewing documentation, establishing cultural affiliation, promoting
ongoing dialogue between Indian tribes, Native Hawaiian organizations,
Federal agencies and museums.

The Nez Perce have hundreds of human remains scattered across the nation.
The government enforcing their "steal-treaties" on the Nez Perce and
enforcing their religious teachings upon our people have left many of our
people's bodies scattered like dust in the winds. The documentation is vast in
volume and so scattered in different states, private and federal depositories.

Sadly the appropriations are meager. Fear and ignorant compliance of a
vaguely presented, "Contract with America" has lowered the Senate and
Congressional representatives sensitivity to treaty compliance, human rights
and equal protection of the laws. We suffer by appropriation and we are being
attacked by appropriation process.

Appropriations for NAGPRA implementation within the budgets of Federal
agencies, particularly the land management agencies with the largest
collections and lands to mange; i.e., NPTS, BLM, FWS, BOR, and Army Corps
of Engineers, are essential if agencies are to meet their statutory requirements.

116

As recommended by the review committee for such a large and complex
program appropriations need to be increased to about $10 million. With the
hundreds of Indian and Native Americans and organizations the increase
should be atleast $50 million. This would be good faith appropriations.

Impending disputes will arise over the meaning of "Indian Tribe" further
burdening inadequate appropriations. Congress should clarify the meaning of
"Indian Tribe" within NAGPRA in order to permit Native American groups
not presently recognized by the Department of Interior Bureau of Indian Affairs
to repatriate their human remains, funerary objects, sacred objects, or objects of
cultural patrimony.

Congress must take steps to assure that the Smithsonian complies with all
NAGPRA requirements. The Smithsonian up until November of 1995 had
posted in the Natural History building in the Native Cultures display area, a
very derogatory article about the Native Protection Graves Protection and
Repatriation Act. The article was posted for months on the bulletin board for all
passing public to read. This article was very biased and racist,

The article written from an archaeologist's point of view, blames Indians for
destroying history. This destruction comes from enactment and enforcement
of NAGPRA. A picture was taken of the posted article and story written by
America's Eagle Magazine and published last year. America's Eagle Magazine
has mailed the U.S. Senate Indian Affairs a copy of the story.

The Smithsonian operates under a variety of policies regarding Native
American repatriation. The Smithsonian does not have to provide inventories
of human remains and associated funerary objects to Native Americans on or
before November 16, 1995.

The Smithsonian does not have to provide written summaries of its holdings to
tribes. The Smithsonian does not have to follow the repatriation procedures for
human remains or cultural items required of all other museums federal
agencies, or universities.

Congress must consider legislation to protect Native American and Native
Hawaiian graves located on state or private lands from grave robbing and other
kinds of destruction and desecration. Enforcement suffers from ignorance
from assumed jurisdictions and political in-fighting by states and tribal and
native governments and organizations causing some delay in repatriations.

Publication of Federal Register notices on time may be difficult given available
resources. This could delay repatriations. Any publication of civil penalty
regulations, need to ensure compliance with the statute, will require additional
effort to meet new enforcement responsibilities.

There has been confusion by some tribes as to the roles of the Interior, the tribes,
and museums and parks. The December 4, 1995 regulations are less more
constraining on the Indian people than the museums. Still a lack of address to

117

private collections, private lands and enforcement echoes a meager impact in
the long run. Tribes face excessive tribal delays, costs in attorney fees, travel,
and other impending problems.

I provide two stories in which the Congressional and Senate representatives can
relate to. (Note Attached) To the Non-Indian world, to the U.S. Government, our
Chiefs are our spiritual leaders, our peace-keepers and our Presidents. Look at
these two articles and realize the date. ..early January 1996. How would the
Congress and Senate like to read of the skulls of their presidents being removed
from their bodies?

We all have supported the repatriation of our dead from Vietnam. The same
support is needed both in money spent and the effort into repatriation. It is only
right that human beings be respected even after death. __ ._„

That is all,

David C. Holt,
Ti' Ped Ki'uun

118

mmmmrms

Skull and Bones red e

e up_f6rquesti§ning ^

, By Paul BrinkIey-Roger3^t?g

OLD WEST;

'He died an old man. a prisoner or
war who dreasad up m ridiculous
costumes lo poso for tourist photos.
But in life, he was as fm and elu-
sive as the wind, r--- »■(••.
-' He *u such a scourge in the
Southwest that tho U.S. government

buried Geronlmo whore they held

him, in Fort Sill, Okla,, far away

from Arizona, -where he and his

- Chiricahua Apaches had held out

until the end. : V-' ■ - •■ - :•
', In lew, his remains were laid to
rest. Interred in a concrete and iron
tomb at Fort Sill that to thlsjla
►-remains a'tDurlstBCJ^ac^on7 , ^^
fif. ' Or ware ihey 7 ■'- '■- ;.'„; .; .(/>..■.''..- l ■ .. : ' >, ;
i'* a former Chairman of .'the San
, Carlos ApaoncH believes, based on '
[ some historical documents and an

■ an unusual encounter, with the
I brother of Vice President George-
j Bush, that soon after Geronlmo wn
{,: bnrled, a group or young Army offi.
J, cars broke, into his. tomb as part of
{'■ a prsnk,^*' Jz*? ^j @i&<'*£'''. > .■ • j :.■'.■■:.:.>'•
If ■■"■ Ned Anderson', who led the tribe ,
t from 1978 w 1986, wants Rep.' Mor-.
t rn rjdall, D-Arbt., to open n con-
/.groaianal Investigation into- the"
f matter. Anderson flaya flpcurntnta
[from Yale .University's Becretivo

i. Skull and Banc* society^ 4 student
i and alumni -club, show that George
[-Bush's father, Prescott S. BuBh. led
rvthe grave robbers and;tooX Geronl- J
fmn's sknll so be could hang it on the"
p. clubhouse wall. ?_r. ■•.-'•'< ! -:,k ►-•'a: $Mrjj'
;t In September -19B6, l r Anderson
r aald, Jonathan Bush the,vlce presl-
i; dent's brother, tried to return the
i skull and other relin to Anderson

* in New York. City after the Apache "
loader pointed out tiet tribal mem-
bers regard the remains ax sacred.

['$. Ho showed documents from Skull •

]■ and Bones, into which all 'three

Bushes were initiated, that spell out

■ In detail what Prescott Bush and

• his friends did thatnleht 70 years
'■ago.--'- ■■-••• .fV-. ■•■■ :*.■■;..
.: Anderson said Sen. John McCain,
; R-Aria., tried lo help try attempting
'.to set op a meeting with the rice

* president two years aeo When Bush
I was In Phoenix, iut>-va meeting

failed to come off. - $Snfi -i/f-v > ■• - ■■;;
J' "I concludnd at {he time th'at he,

• Bush, probably did- not want to
; meet with mc because, he knew I

was going teTa.Ua the Geronlmo la-
,5111!.' Anderson told Udall in a Feb
' ruary letter requesting a congres-
i slonal probe Into L'thls huarro,
' atrocious desecration "

• Ea"

hlcioi
i thac Skull and Bones members raid
. an Am — ■ '■- -

Are Qeranlma'a remains In a grave

tlonary leader Pancho Villa from
his grave in Chihuahua. •..'•■ '•:

Endicott P. Davison, a lawyer for
the society, denied that allegation
in an Interview with The Arizona
Repablic

The EI Paso group nevertheless

l^ZS?,™^* a »««? or wrote to C«or g0 Bush asklne the

ei ! , ^^ Iu . i n E1 V listed vice president to help return the

skuM to Mexico, A spokesman for

at Fort Sni?

c-;t : ? . - • Y\if*¥*&.p&$z

Davison did not return -phone .
• calls asking him to commant on Ajk
derson'a allegations, "^s' ■■*? *",■*%?" l
. Jonathan Bush also did cot re.
' turn colla to his komc and lo blB
.New York business office, where
Anderson said the failed negotia-
tions for the return of the skull oc-
curred. '■ • ■ -,i'.\^v. ,K

Skull and-Bones is one of several

119

SKULL

/FROM G1

T^r

ot^jj

elite secret societies at Yale dating therefsre "cannot possibly] be^thflael
from the 19th century. Its members- of Ocronimo." " ' f % f}?;Cfly^JB£ril
include a long Hat of prominent - Anderson said he refused to sign
government and business leaders, . the document hat retained a copy
and the club steadfastly refuses to of it and the copy of the club hlsto-
discuss its rituals or to even make ry, which Davison tried to retrieve
membership lists public. from him, to press Us quest for the,

Relating the story of hoar the skull elsewhere. | A^lvt&si&ef^v'J?
vice president's father engaged in a He said that the cavities for the
"mad expedition"' at Fort SHI, a eyes and the nose In the skull the;
183 J Skull and Bones History of two men offered him ^" did noi
Our Order says, "An ax pried open match those in tha photo, 'ot. the
the iron door of the (Geronimo'sJ skull I had." ■- / ».' ••■":. i"^Jf&iiv.
tomb, and ...Bush entered ana .A bridle and other leather items
started to dig. .-.' .enclosed' in' tne' wood and- glaa*

:-."The skull was fairly clean, hav- showcase for the skull "apparently

, ing only some flesh Inside and a lit- were genuine,". he said, "but I be-
lle hair," the author Of the account : lieve someone switched the skull "ii:

; wrote as he described how the raid- yt Anderson met with TJdall in Feb»~

■era cleaned it with carbolic acid, ."l^ruary- 1087 'In Phoenix to pro tost
showered And bit the hay ... a happy., the situation and then wrote to him

man." .. :.. Uiis year to ask' for. an Interior

The elder Bush robbed the grave, Committee; hearing.:. : He • '"• cited
the document said, 'To bring to the Gerontmo's often expressed' desire
T. (an apparent reference to the . to Be burled In Arizona instead of in
"Tomb" or clubhouse) its most Oklahoma. - : '- :-'^ '■•"^"itfljSS&x'+i
spectacular 'crook.' the Skull of- "Given the fact that George Bush
Ceronlno the terrible, the Indian was a member of Skull ana Bones
Chief Who had taken 49 ' White In 1948," Anderson wrote 'Udall,

.Scalps."

- Anderson said that after obtain-
ing the account and a photo of the
skull as it is displayed at society
headquarters from a Skull and

Bones member be would not identi-
fy, he went to New York City to

meet with Jonathan Bosh and Davi-
son, in an attempt to retrieve the

"and therefore bad ta have seen
these remain* on display during
that time ana ... curiously he did
not say or do anything about them.
"It would seem to me that even a
person possessing a mediocre level
of intelligence Quotient would have

ueetloned the origin of a .display
'— leted that, tho contents

remains. Hpers the rami:

■"•After a series of meetings,' An-f FraritDuchcneaux, coimsgLjon-
denon said that on Sept. 5$ 1986, ^inrji affTTf f alrsT o r uib H ffuse Interi-
"Jonathan Bosh sod Davison at- or Committee, of which Uda.ll Is
tempted to band over a skulL An- chairman, soid Udell "took It under
derson said he refused to accept It consideration, but just didn't see
because he did not believe it was how the committee could get into
-the one on display Id the Skull and that.".-: r "':; ''-: \ •;:' P^JMtt-l&i ?<:&'
Rones clubhouse. . "The Apache tribe itself did not

' -Anderson said Davison drew up a made a formal request for action, '
"document for him to sign, saying and that would have been a factor
•the Apache leader agreed it would in Mo's acting upon It." ~"A'vT fi\ <\
•be "inappropriate for you. mc or in ism, a pacha leaders'* from '
anyone In association with us to reservations in Arizona. New Mexl-
■makc or permit any publication In cc and Oklahoma falles to agree OD

connection with this transaction." a request by Anderson anfl Ronnie
Anderson culled the document "
."irery insulting to Indiana.'*
"^"Anderson also said he was '
confused and annoyed because the

Lupe," former chairman ot the
White 'Mountain- Apaches," that' I

Geronlmo's remains be returned to I
Arizona for rcburlal in accordance
wltn tribal custom. • ':.' v; * l ';''; ". -~ <•--"
Opposition to the idea, and bo the

document also sola that Skull and

•Bonos members had submitted the

skull to "an expert In New Haven notion of exhuming his body, was

(where Yale is located in Connects- led by OcroniraoTj deacendantsf

cut)," who determined that the re- who number about 125 and still live -

mains were that off a child and in theFort Sill aroa. — ..".r >- :r-' i

120

IS ez P erce Graves

-'•j

CLWUKSTON, Wash., Sept.

-3-(UPI>— Nez Perce Indian

graves, including that of Chief

Joseph, have been~robbed and

_dc secrated near here, anthr o-

. polagists - sTloTfoa'ay. ?~~ '.'.-■—

— The-38-graves, dating- back

more than 100 years, were "in

an old burial ground a bout^S

muea wealxlJcre^ ~ — .

Dr. Roderick Sprague—Uni 1 "
versity of idaho anthropolo-
igist L said he, graduate assis-
tant Mike Rutherford and "a
group of eight workers went
to the site to move the graves.
The_bui:lal_ground_i.s_to .be

covered by . th"PTp aa L-t o» .» -«»
formed when-Lower~Gra:jiie
Dam on the . Snake Rlvei* hr-

finished in 1975. . _

__Dr,_S]prague^sald ^rods ]a 2fl
-been 7 driven Into the ground

to locate coffins, which warn
opened and robberTbf jewelry
and skulls . ; ,. _ ~"j~~^:' -^l:
Human skulls are worth' $2S

each— on— a- bizarre— "under*
ground" market and consider-
ably mare when smuggled to
California, authorities said.
— ^W-mafces-me-mad to just
be around_the. place_and see
what has been done" said
Richard Half moon of Lapwai.
Idaho, chairma n of the .Net
Pecce~~TFibal "Council. "We
know the name~Bf~thc dentist
who has Chief Joseph's skull
and uses it .for an aflitray."
Chief Joseph, the Nez
Perce's ' greatest chief ,.J&jj_ at
faction 'of "tfte~.trib'e^pn a^DfQ^
liant, 1,500 mile-fligh t toward
Canada, pursued by U.S. cav-
alryrT ho-rgtreat-la~atilriBtBd-
ieddby-jnllitary-tacUcians..- '

121

Successes, Problems, and Challenges:

I mplementing the Native American Graves Protection and Repatriation Act

Testimony to the Senate Committee on Indian Affairs
Presented by Dan L Monroe

Immediate past President, American Association of Museums

Executive Director & CEO. Peabody Essex Museum

Member NAGPRA Federal Review Committee

December 3. I99S

122

Overview

On whole, affected parties , which include several thousand museums, universities,
federal agencies, and Native American tribes, have implemented the Act in
accordance with the intent and spirit of the law . More than 2,700 Native American
human remains and 122,948 associated funerary objects have been repatriated.
Sixteen objects of cultural patrimony, and 212 sacred objects have also been
repatriated.

Key results of the Act to date include:

• Establishment of eoual treatment under the law for Native American dead

• Partial restoration of individual and tribal cultural and religious integrity

• Assistance in helping several tribes continue or restore traditional Native American
religious practices

• Increased partnership among many museums, universities, and federal agencies
resulting from dialogue reouired by the Act — benefits include greater knowledge of
collections, better public interpretation of Native American art and culture, and
increased understanding and appreciation of the Native American experience

Given the large number of agencies and individuals involved in the Act, and the
complexity of issues the Act addresses, there have been remarkably few disputes
among the affected agencies and parties . The museum and scientific communities
have generally embraced the principles of the Act and carried out its provisions in
good faith, often at considerable individual and institutional expense. Tribes have
done the same.

While implementation has not been without significant challenges and difficulties,
and while it is too soon to give any comprehensive, long-term assessment of the
impact of NAGPRA, to date the Act has largely succeeded in realizing
Congressional objectives .

123
Problems and Issues

Need to complete promulgation of regulations. The Act called for establishment
of regulations within a year of its passage. Five years later, regulations have yet to
be promulgated though regulations covering part of the Act will soon be
published. There are several reasons for this extended delay.

• The Review Committee was not appointed until a year after passage of the Act and it can
only meet, due to budget restrictions, two to three times a year

• Regulatory issues are sensitive and they require substantial input from affected parties and
subsequent consideration by the Review Committee and the Secretary

• The Department of Interior's NAGPRA Office is small and its workload is large

• The Department of Interior is a large federal bureaucracy: it is difficult to move regulations
through the system in a timely manner

Absence of regulations over the last five years has caused unnecessary confusion
and expense to museums, universities, federal agencies, and Native American
tribes. Though key deadlines for the Act — filing of summaries and inventories-
have passed, it is important that r e gulations for the rema inder of the Act be
promulgated within a reasonable time.

Need to increase financial assistance to museums, universities, and Native
American tribes. Congress has appropriated $4.37 million for grants to museums
and tribes. This amount is less than 5% of the total, conservatively estimated $55
million in costs for NAGPRA implementation to date . Neither museums, tribes,
nor Native Hawaiian organizations operate with significant discretionary funds.
The financial burden to all parties will continue to be heavy as consultation related
to inventories of human remains and associated funerary objects increases.
Congress is making substantial cuts to federal support for museums and tribes.
These cuts will hurt the ability of some museums and of many tribes to carry out
NAGPRA implementation in an effective, timely manner .

Our nation has spent vast amounts of money, rightly, in an effort to repatriate
2,500 of our dead from Vietnam. There are tens of thousands of Native American
dead that should be repatriated. The nation has a moral responsibility for return of
these remains, many of which were taken under federal auspices. Federal financial
support for NAGPRA should, at a minimum, he doubled for the nex t three years.

124

Limited ability of non-federally recognized tribes to participate in the Act. The
Department of Interior has interpre ted the def inition of 'tribe' in the Act to apply
onl y to federally recognized tribes . Thus, many tribes, some previously recognized
by the federal government and others not, have been disenfranchised or partially
disenfranchised from the benefits of the Act. More than fifty tribes are presently
filing for federal recognition. The Review Committee has urged the Secretary to
adopt a more liberal meaning of the term 'tribe' for the purposes of the Act a nd
applicable only to the Act, but to no avail .

While some museums, tribes, and the Review Committee have cooperated to
return some human remains to non-federally recognized tribes, the general
exclusion of non-federally recognized tribes who possess continuing cultural
identity represents an important flaw in the construction of the Act, or its
interpretation. Short of amendments to the Act, which are not generally favored at
present. Congress can recognize this problem and urge the Secretary to seek
means to ameliorate it .

Exclusion of the Smithsonian Institution from NAGPRA. The Smithsonian
Institution, the national museum, is not presently required to adhere to the terms
and provisions of NAGPRA. although assurances were given at the time NAGPRA
was passed that the Smithsonian would adhere to its provisions . Instead, the
Smithsonian operates under separate legislation. The various Smithsonian
museums operate under a variety of policies regarding Native American
repatriation. The Museum of the American Indian's policies provide greater
opportunity for repatriation of Native American human remains and cultural items
than NAGPRA terms and provisions. The American Museum of Natural History
operates under separate policies. While the Smithsonian has spent substantial
money, time, and ene rgy on re patriation, its policies do not uniformly assure the
same rights to Native Americans as those guaranteed under NAGPRA.
Specifically, the Smithsonian does not have to:

• provide inventories of human remains and associated funerary objects to
Native Americans on or before November 16, 1995

• provide written summaries of its holdings to tribes

• follow the repatriation procedures for human remains or cultural items
reouired of all other museums, federal agencies, or universities

125

The Smithsonian Institu tion argue s that it is making solid progress in r epatriating
human remains and cultural items and that bring ing it under NAGPRAs provisions
would onjy encumber and slow their work. We believe that as the national museum
the Smithsonian should set an example for other institutions and that present
Smithsonian policies, which vary from museum to museum, do not accord the
same level of rights and protections to Native American tribes afforded under
NAGPRA.

To bring the Smithsonian under NAGPRA now could only be done through a
general policy decision of the Secretary of the Smithsonian or by passing new
legislation. A general policy decision for all Smithsonian museums to adhere to
NAGPRA is a simpler option than new legislation. In any case, special provisions
would have to be made for the Smithsonian since they have not uniformly filed
summaries or inventories, or otherwise complied with the Act. The Review
Committee, notwithstanding its difference of opinion with the Smithsonian on this
matter, plans to work closely with the Institution to address matters of mutual
concern.

Unidentified and Unclaimed Human Remains and Associated Funerary Objects.
The most difficult unresolved NAGPRA issue involves the dispo sition of
unidentified human remains and associated funerary objects . The Review
Committee is reouired to make a recommendation to the Secretary on this
important matter. The fundamental problem is that NAGPRA provides for return
of human remains and cultural items where cultural affiliation with a specific tribe
is established. There are many Native American human remains that cannot be
identified or affiliated with a specific tribe.

The Review Committee has taken testimony on this controversial issue from the
Native Americans, scientists, museum professionals, and federal agencies. Ihfi
controversy is hottest with respect to disposition of ancient Native American
remains. These remains can seldom be affiliated with a specific tribe. Scientists
and others argue that much can be learned from these remains and therefore they
should be retained for further study. Native Americans almost unanimously arg ue
that they are culturally and otherwise affiliated with these remains and that their
religious and cultural beliefs dictate that the remains he returned and reburied .

23-074 96-5

126

The Committee issued a set of draft recommendations on this matter for comment.
The draft recommendations stated, in effect, that Native Americans are most
closely affiliated with unidentified remains and that they should, therefore, have
the ultimate right of disposition. The response was substantial and contentious.
Several scientists and others responded by accusing the Committee of racial bias.
Native Americans generally applauded the draft recommendations. The Committee
is taking the draft recommendations under advisement and will likely make
changes to the draft, based on several thoughtful commentaries.

At its heart, this issue involves rights of scientific inouiry versus Native American
religious rights. There is some Question as to whether or not the Secretary has the
authority, under the wording of the Act. to promulgate regulations on disposition
of unidentified and unclaimed human remains. In any case, it is likely that
Congress will hear more about this issue in the future.

Conclusion. The Department of Interior's Repatriation Office, under the
leadership of Dr. Frank McManamon, has done, on whole, an excellent job
overseeing implementation of the Act. especially given the limited staff and
resources assigned this office. Thousands of museum, university, and federal
agency officials have carried out the provisions of the Act in good faith and good
spirit, as have Native American tribes and their representatives. The Act has
promoted an increased respect and appreciation for differing world views and
cultural values. Taken on whole, the Act has helped remedy past injustices, it has
enhanced the cultural and religious integrity of many Native Americans, and its
has produced a new. and better, relationship among Native American tribes,
museums, federal agencies, and universities. It has. therefore, largely succeeded in
achieving the purposes for which it was crafted. However, failure to provide
greater federal financial assistance for tribal review of inventories and face-to-face
dialogue and consultation may seriousjy jeopardize successful implementation of
the Ad .

127

EAST INDIA SQUARE

SALEM. MASSACHUSETTS 01970-37B3
M U S "K U M

TEL: 508-745-1876 PAX: 508-744-6776

January 26, 1996

The Honorable John McCain, Chairman
Committee on Indian Affairs
United States Senate
Washington, DC 20510-6450

Dear Senator McCain:

I deeply appreciate and commend you for the tremendous leadership and support you have
provided to Native American affairs and to the issue of repatriation. Following are answers to the
questions you asked regarding my testimony and that of others at the hearings on implementation
of the Native American Graves Protection and Repatriation Act.

1 . How does the NAGPRA Review Committee plan to work closely with the Smithsonian
Institution regarding repatriation issue of mutual concern?

The Committee has testified that it believes the Smithsonian Institution, as the national
museum, should adhere to NAGPRA statutory provisions. NAGPRA provisions provide
deadlines for notification to tribes regarding holdings of human remains and cultural items.
Several Smithsonian museums have not met these deadlines since they operate, at present,
outside of NAGPRA' s authority. Thus, many tribes do not know what human remains or
cultural items of potential interest to them may be housed at the Smithsonian.
Smithsonian museums are not required to go through NAGPRA dialogue processes with
individuals or tribes to resolve repatriation issues. Finally, Native Americans who may
have concerns regarding repatriation issues at the Smithsonian do not have access to an
independent review committee to address their concerns. The Committee has made clear
to the Secretary of the Smithsonian that we believe the Smithsonian should comply with
NAGPRA provisions The Secretary has responded that he does not intend to assure that
all Smithsonain museums comply with NAGPRA, notwithstanding earlier pledges by the
Secretary preceeding him to do so. Under this circumstance, the Committee has made
clear that, notwithstanding a disagreement regarding compliance with NAGPRA, it stands
ready to work in whatever ways possible to assist the Smithsonian in carrying out
repatriation of human remains and appropriate cultural items. No specific plan of
cooperation or coordinated action has, however, been developed.

128

The terms of the Review Committee members are set to expire in 1997. Do you believe
that these terms should be extended and if so, for what length of time?

The work of the Review Committee is not complete. Regulations have not been
promulgated (much to the Committee's chagrin and regret) to cover the entirety of the
Act. The present members have, however, gathered and listened to a tremendous amount
of testimony from all affected parties and from all parts of the nation regarding regulatory

It would be nearly impossible for new Committee members to gain access to much of this
testimony since it is not written but was rather delivered verbally If the Department of
Interior dedicates sufficient resources to the Act, it would be possible to complete
regulations by late 1998. Additionally, the Committee is likely to receive considerable
'business' subsequent to the filing of inventories with tribes. Thus I recommend that the
present Committee continue in place until 1999 and that a new Committee be appointed to
continue the work, such appointments to be solicated, considered, and made by the
Secretary of the Interior, after that time.

3. When will the Review Committee make a final recommendation regarding disposition of
unidentified human remains? Do you believe it is necessary for the Secretasry to
promulgate regulations to enforce the Review Committee's recommendation on the
disposition of unidentified and unclaimed human remains?

The Review Committee is working as quickly as possible within the limits of time imposed
by a schedule of three meetings a year to complete its recommendations on this difficult
set of issues. The matter is contentious. The Committee has heard many in the scientific
community argue that unidentified remains, especially ancient remains, should be retained
by museums, universities, and federal agencies due to their research value. Most Native
Americans want these remains reburied. NAGPRA provides little guidance on this matter
since, by definition, it is not possible to establish cultural affiliation for these remains. I
expect the Committee to submit a second set of recommendations for field comment in
1996 and to attempt to make a recommendation to the Secretary of the Interior in 1997.
The Secretary will then have to prepare draft regulations and allow time for field comment
prior to promulgating regulations. There is no question whatsoever but that the Secretary
will have to promulgate regulations. The Review Committee's recommendation does not
carry the force of law and, given the contentiousness of the issue, it is highly likely that
some agencies would choose, absent regulations, not to adhere to the Review
Committee's recommendations.

4. Na Iwi O Na Kupuna O Mokapu, Heleloa, Ulupa u A Me Kuwa'a'ohe v. John Dalton

Should the Freedom of Information Act be applied to NAGPRA inventories?

This is a difficult issue since it requires balancing freedom of information against potential
damage to Native American graves caused by release of information regarding Native

129

American grave sites, many of which are located at remote locations that are difficult to
protect. In general, I believe that there should be some constraints on unfettered public
access to inventories. There are several possible approaches. Anyone requesting access to
inventory information could be asked to state their purpose in acquiring this information;
their name and address could be obtained; and tribes could be notified that the information
has been requested. If tribes object to dissemination of the information then references to
geographic location of burial sites could be eliminated from the inventories prior to their
release. This approach provides some protection without unduly limiting research or other
legitimate access to inventory information. While time-consuming, this approach is less
troublesome than exempting NAGPRA inventory information from the Freedom of
Information Act entirely, thereby inhibiting historical or other studies, including those that
Native American historians may wish, at some time, to undertake pertaining to the
acquisition of Native American human remains. Congress will need act on this matter,
given the above court ruling, if some protection is to be provided to Native American
grave sites.

Does NAGPRA adequately address the issue of scientific studies of human remains?

I believe NAGPRA statutues are clear with respect to extended scientific studies once
cultural affiliation has been established. Statutes explicity prohibit additional study
following a determination of cultural affiliation based on existing records. I am at a loss to
understand the court's ruling on this matter.

Are new definitions of 'inventory', 'scientific study', and 'scientific information' required
in NAGPRA given the court's ruling in Hawaii?

It will obviously be necessary, either by statute or by regulation, to clarify the meaning of
'scientific studies' and 'scientific information' to protect against unwarranted additional
study following a determination of cultural affiliation. The intent of NAGPRA was clear-
no additional studies are to be undertaken once cultural affiliation has been established. To
permit additional studies often represents a violation of Native American human rights and
religious convictions, as well as providing for delays in repatriation.

Under what circumstances, if any, would further scientific studies, either during the course
of compilation of an inventory or after the conclustion of such an inventory, be warranted?

Scientific studies approved by tribes likely affiliated with remains may be justified during
compilation of an inventory. Scientific studies that are opposed by tribes likely to be
affiliated with human remains should not be undertaken Scientific studies undertaken after
inventories have been completed should only be permitted when the national interest is at
stake, or when further study may help resolve determination of cultural affiliation.
Scientific studies of ancient remains that are not affiliated with any present day tribe or set
of tribes constitutes a distinctly different set of issues. The Review Committee has not
formulated a position on this question.

130

Should Congress amend the Act to provide authority for legal actions to be brought by
those who may qualify to serve as guardians for the purposes of invoking the Act to
protect Native American human remains?

Since a good portion of the law has become so technical that even knowledgeable, well
educated persons cannot understand it within a reasonable period of time, it is difficult to
comment in an informed manner on this question. In general, the Hawaii case denies that
human remains, taken alone, have standing before the law, though courts have permitted
suits to be filed on behalf of animals and ecosystems. Human remains are, by definition,
dead in Western belief systems. The law is based on Western belief systems. Traditional
Native Hawaiaan beliefs contradict this position since traditional Native Hawaiaan beliefs
take human remains to be, in a very real sense, alive. Since the dominant society makes the
rules it is unlikely, as borne out by the Hawaii ruling, that any court will be willing to
accord human remains standing.The court did, as I understand the ruling, give Hui
Malama standing in the case but it denied that the remains themselves could have standing.
In short, it is unclear to me whether or not the court's decision requires additional
Congressional action regarding guardianship. I am not clear that the court's ruling denied
guardianship capacity on the part of Hui Malama. If I have failed to understand the ruling
and the court denied Hui Malama guardianship capacity for these remains then I would
support Congressional action that assures that Hui Malama and tribes have the ability to
act as guardians over human remains with which they are affiliated.

I appreciate the opportunity to address these issues and I look forward to working with
the Committee and Congress in any way possible to assure the this important law, aimed
at redressing a long history of injustice, be implemented effectively, equitably, and
efficiently.

Ask.

Daal.. M/nroe

Exeetrtfre Director, Peabody Essex Museum
NAGPRA Review Committee member

131

American
Association
of
Museums

Statement of
William J. Moynihan, Ph.D.

President
Milwaukee Public Museum

On the Native American Graves

Protection and Repatriation Act

(P.L. 101-601)

Presented to the

Committee on Indian Affairs

U.S. Senate

December 6, 1995

132

Mr Chairman and members of the Committee I am William J Moynihan, Ph.D.,
President of the Milwaukee Public Museum, presenting written testimony on behalf of my
institution and on behalf of the American Association of Museums

As you know, in 1990 Congress passed and President Bush signed the Native
American Graves Protection and Repatriation Act (PL 101-601 - "NAGPRA") NAGPRA
is remedial legislation enacted by Congress to ensure that Native American remains, funerary
and certain other classifications of objects retained by the federal government and by the
museum community are returned under the law to appropriate tribes and organizations for
reburial or other appropriate care

The Milwaukee Public Museum is committed to fulfilling both the letter and the
spirit of NAGPRA This commitment is reflected in museums across this nation It is the
law of the land, it is accepted by the museum community, and we in the museum world have
benefited from new and productive relationships with Native American groups as a result of
NAGPRA

Allow me now a moment to describe the implementation of NAGPRA at the
Milwaukee Public Museum as one specific example from the museum community We are a
mid-sized natural history museum with a budget $8 million, an FTE staff of 135, and
collections of approximately 4.5 million specimens and artifacts, with an especially strong
collection of Native American material

Our most recent permanent exhibit. "A Tribute to Survival," portrays a modern day
powwow and has a strong Native American voice and interpretation within the exhibit It is
a source of pride for area tribes to such an extent that a local Native American group
contributed $250,000 to this project, and numerous individuals from the community were
involved in the development of its content and approach

Since NAGPRA was enacted, the Milwaukee Public Museum, previously a
department of Milwaukee County, became a not-for-profit organization with its own Board
of Directors Our funding from Milwaukee County decreased by $15 million between 1990
and the present, and the Museum ran large deficits in 1992 and 1993 The level of staffing
has been reduced 27% since NAGPRA was enacted (between 1990-1995), budgets were cut,
and programs lost. It is within this budgetary context that the Museum's extraordinary
efforts to implement NAGPRA need to be understood and judged

Our most recent estimates show that the Milwaukee Public Museum will have
committed well in excess of half a million dollars by 1997 to deal with this legislation
Existing staff in our Anthropology/History Section have been reallocated from their normal
duties to NAGPRA-related activities, a large team of volunteers assembled, and trained
student interns and work -study students hired

133

The task has been a daunting one The Museum has been collecting anthropological
and archeological material for over 100 years The collections include approximately 50,000
catalogued items in the North American archaeology area and 22,000 in the North American
ethnology area The remains of 1 ,500 individuals are included

Furthermore, the collections are not computerized, although efforts continue to secure
the necessary funding The records are uneven and extremely varied, reflecting changing
professional standards over the 113-year history of the institution Several moves in the
history of the Museum have taken their toll on the records as have the ravages of time.
Finally, this major effort was initiated at a time when the staff reductions and budget cuts
previously mentioned were at their most severe

Even given these difficult circumstances, the level of accomplishment at the Museum
in implementing NAGPRA is laudatory Much has been accomplished, and I would
emphasize more than anything else the positive and productive relationships between the
museum and Native American groups which have resulted from this entire process In
addition

-A physical inventory of over 22,000 Native American ethnographic objects in the
collections was completed prior to the November 16, 1993 deadline,

- A preliminary inventory of the 50,000 archaeological objects was conducted;

-Letters were sent to several hundred tribes by July 1993 notifying them that the
Museum held material attributed to their tribal group and that they could expect
summaries to be sent by the November 16, 1993, deadline;

-Further research and phone contacts were used to identify the tribal affiliations of
specific reservations or combined Native American communities when they
could not be identified through Bureau of Indian Affairs and National Park
Service Lists;

-Summaries of Native American collections were sent to 572 federally recognized
tribes and native Alaskan and Hawaiian groups before the November 16, 1993,
deadline These summaries included a description of the objects, categories, date of
acquisition by the museum, number of objects, and a list of any material originating
in a tribe" s general region but for which the Museum lacked specific provenance
information

-Phone calls were made to several hundred tribes to make sure the summaries had
been received, to deal with any questions and to establish a human contact

Since November 1993, work on NAGPRA has continued and even intensified Our
staff has responded to numerous letters and telephone inquiries from tribes regarding their
summary letters Detailed packets of information have been sent to tribal representatives

134

We have gone beyond the requirements of the law by providing written documentation,
photographs or drawings, and complete descriptions of objects as we have consulted with
Native American groups This has helped build a sense of credibility and confidence in our
relationships with the tribes The actual visits have been cordial and successful, and have
given us a new understanding of the collections, but they have also been very time
consuming for the staff The staff has drawn upon this experience to make presentations to
other museum professionals at meetings of the Midwest Museums Conference and the
American Association of Museums, and has advised other museums of appropriate
consultation methods and tribal visits.

During this time, the Milwaukee Public Museum has also taken a leadership role in
providing to tribal museums not only advice on the care of collections, and on building and
improving their museums, but also professional training for staff As museum

professionals, we feel a responsibility to the collections and their preservation, no matter
who holds them

The major focus of staff time since 1993 has been on the inventory of the North
American archaeology collection, including human remains and associated funerary objects.
This task proved to be even more complex than the previous work The first step was a
conventional physical inventory to ascertain the status of the archaeological collections in
storage, on exhibit, and on loan, in comparison to existing catalogue records Since the
material was collected over a 100 year period, it was not organized according to any single
system. Some of the collections were organized by locality, for example, where the only
provenance was "Wisconsin " Others were grouped by type or broad regional traditions,
such as "Old Copper Culture " And, of course, the collections were not computerized

The staff then turned to a total physical inventory of the archaeology collections —
compiling detailed lists of contents of each drawer in storage, checking collections records,
and verifying and correcting our records Because of the poor state of records in this area of
the collections, an enormous amount of time has been spent, but we do want to retain our
credibility with Native American groups by providing complete and accurate information at
the end of this phase of the NAGPRA requirements

Despite our good faith efforts — some might say because we did more than minimally
required by the law - and because of the size and condition of the archaeological collection,
we have applied to the National Park Service for an extension of the November 16, 1995
deadline for the completion of inventories of human remains and associated funerary
objects, and the consultation process which follows

The Milwaukee Public Museum, like the museum community in general, has also
been hampered in its progress by the delay in the publication of the final regulations Since
passage of NAGPRA, five years - and both NAGPRA deadlines - have passed and we still
do not have final regulations This has left us in an ambiguous situation, not knowing if we
are, in fact, in full compliance and spending a great deal of time consulting with colleagues
at other institutions to determine consistent interpretations and definitions of the law Even

135

the most basic definitions ~ such as what constitutes a "tribe" - have changed in the draft
regulations and will have important implications to us when finally determined

Let me say a few words about the national situation In 1994, the American
Association of Museums surveyed 500 of its member institutions, including all of its natural
history museums and a selected sample of its art and history museums The survey response
rate was 43 6% Of those responding, 76% of the natural history museums, 43% of the
history museums and 23 % of the art museums had Native American objects Those
respondents ~ a little more than 200 — alone had almost 3 5 million objects which fell into
NAGPRA categories, and that does not include 15 responding natural history museums,
including three large institutions, which could not give an estimate of their NAGPRA-related
holdings An overwhelming number of these institutions suggested that a national clearing-
house be established for such information as lists of tribes - with examples of what those
tribes consider to be sacred objects or objects of cultural patrimony — and lists of experts
who can be consulted, as well as noting how the lack of final regulations and of NAGPRA
grant funding has hindered or prevented their repatriation efforts.

All sizes of institutions showed large numbers of objects Among small history
museums, 65 responded, with 31 affected This is in a context of 4,500 history museums
nationally, of which 90% are small

Estimating aggregate costs is not possible from the survey data, given the great
disparities in how institutions calculated their own costs It is clear, however, that thousands
of institutions across the country are affected to some degree by NAGPRA costs.

We understand that the Native American community is also incurring major expenses
in attempting to comply with the requirements and deadlines of NAGPRA.

In closing, 1 respectfully submit that there are two major impediments now faced by
museums and by Native American tribes and organizations in carrying out the intent of
Congress First, the long-delayed regulations have still not been published in final form as
this testimony was being written, although 1 understand that such publication may be
imminent There are great complexities in the implementation of NAGPRA, and many
ambiguities Museums and Native American groups need the final regulations I would
respectfully request that the Committee encourage the Administration finally to issue the
regulations

Second, museums and the Native American community have faced great costs in
implementing NAGPRA In the case of the Milwaukee Public Museum, and in many other
cases, this burden has come at a time of budget and staff reductions The Congressional
Budget Office in 1990 estimated NAGPRA would cost museums $40 million and Native
American tribes and organizations between $5-10 million over five years We now know
from experience that these estimates were too low The $2 3 million now competitively
available to museums and Native American groups through the National Park Service's
NAGPRA grant program does not come close to providing the supplemental support needed

136

to implement NAGPRA. For example, I understand that the National Park Service awarded
83 NAGPRA grants totaling $4.37 million for fiscal years 1994 and 1995, but in doing so
they received 337 grant proposals requesting just short of $30 million In the case of the
Milwaukee Public Museum, no federal funds have been awarded In light of these facts, I
would respectfully request that the Committee urge the Department of Interior to increase its
budget request annual funding at least to the level of $10 million per year

Thank you for this opportunity to testify I would be happy to respond to any
questions you might have

137

American
Association
of
Museums

September 27, 1995

The NAGPRA Review Committee

c/o Archaeological Assistance Division

National Park Service

Box 37127, Suite 120

Washington, DC 20013-7127

Dear Review Committee Members :

The American Association of Museums, which represents the full
range of the nation's museums, including natural history,
history, art and other kinds of museums with NAGPRA-related
holdings, appreciates the opportunity to comment on the Review
Committee's current draft recommendations on the disposition of
culturally unidentifiable human remains and associated funerary
objects. The Review Committee and the National Park Service have
been very conscientious about soliciting a wide range of
interested opinions on this and other NAGPRA issues, and the
museum community has been grateful for these opportunities.

First I would like to make some general comments. It is
particularly important that the Review Committee has been open to
comment because of the background of NAGPRA. As you know, the
creation of NAGPRA initially created great controversy, and the
final result, arrived at by difficult and detailed negotiations
of the affected parties and Congress, was a compromise with which
no party was perfectly pleased but with which all parties could
abide. Central to that delicately balanced compromise- -where
virtually every word was weighed, and key terms carefully
defined--was an encouragement in many places in the law, a
preference, for tribes and museums to work out their own
arrangements via mutual consultations.

Given this background, the museum community has cause for concern
in some of the assumptions and other elements in the current
draft recommendations.

1225 Eye Street

Northwest Telephone

WashmgtonDC (202)289-1818

20005 FAX (202) 289-6578

138

General issues.

1 . Disposition of culturally "unidentifiable human remains."
As the draft recommendations point out, the disposition of
culturally unidentifiable human remains is left open in
NAGPRA. It also seems clear in the law that control of
human remains and associated funerary objects will go to
culturally affiliated tribes and lineal descendents .

However, the very silence of the framers of the law on the
ultimate disposition of unidentifiable human remains,
contrasted to the explicit rules for identifiable human
remains, is important. Proper respect for human remains is
not at issue here. Where cultural or lineal affiliation can
be made under the terms of the law, the law seems to assume
that respect can best be paid by those so affiliated.

Where that cultural affiliation or lineal descent cannot
be determined, and especially in the case of ancient
peoples, the situation becomes more complex. Different
tribes currently existing have widely differing rules for
the proper treatment of the dead; adding the dimension of
the cultural practices of tribes existing in the past adds
to the complexity. Under these circumstances, it is easily
possible to see a situation where human remains might be
interred in complete contradiction to the cultural beliefs
of the interred. Whose rules should prevail?

This is not to deny the appropriateness of Native American
consultation on this issue but to say that the current
general statement in the draft that final disposition of
unidentifiable human remains rest with unspecified Native
Americans should be set aside for the moment and more
thought be give to the details of this issue in a subseguent
draft.

It may be that this issue, as in many places elsewhere in
the law, should be resolved on a case-by-case basis between
museums and tribes. It may also be useful for the Review
Committee explicitly to encourage exhaustion of all means
of establishing cultural affiliation or lineal descent,
including, for example, DNA testing of remains compared to
current human populations, that do not contravene important
religious principles of what are the most likely related
groups, to attempt to move as many cases as possible from
the unidentifiable to the identified category.

2 . Disposition of funerary objects associated with culturally
unidentifiable human remains. Again, an important way of
dealing with this issue would be explicitly to encourage the
use of all means of establishing cultural affiliation of the

139

human remains consistent with Native American practices as
noted above. This would remove as many of the associated
funerary objects as well as the human remains into the
categories already covered by the law.

For the remainder—those funerary objects associated with
human remains which truly cannot be culturally
identif ied--we believe that additional legislation would be
necessary, as the draft suggests may be so. As noted above,
the f ramers ' silence in this area implies intent: while
associated funerary objects and human remains are elsewhere
explicitly mentioned together, the law does not mention
associated funerary objects when discussing unidentifiable
human remains, and neither the law nor regulations requires
their inclusion in inventories.

The effect of the current draft recommendations on
consultation between the tribes and museums. As noted
above, a central element in many parts of the law is the
encouragement of consultations between the tribes and
museums in the NAGPRA process, and encouragement of
agreements for disposition which flow from such
consultations. The effect of much of the Review Committee's
current draft recommendations would be to centralize more
the decision making in Washington than seems contemplated in
the law. Such consultations are vital not only for the
operation of the law but for strengthening and maintaining a
two-way flow of knowledge between museums and tribes and for
increased understanding of Native American culture.

For example, in the discussion of ancient remains (pp. 4-5,
section 2), the Review Committee, not museums, would take
responsibility for notifying tribes potentially affiliated.
Similarly, creation of National Park maps ("procedures for
identification of potential claimants," option 1) again
undercuts the authority of museums and tribes.

We would ask that subsequent drafts of the recommendations
be surveyed with an eye to enhancing rather than diminishing
opportunities for such consultations.

Regional cemeteries or mausoleums'. A potential drawback
here is that these might prevent the possibility of some
current or future scientific process, such as DNA testing,
from being used, with the consensus of proper parties, to
determine true affiliation. (Use of such evidence has, in
recent years, provided a very strong "voice for the dead" in
many criminal trials.)

140

Draft Procedures.

These procedures assume the return of unidentifiable remains
and objects. We think that that assumption needs further
thought, for the reasons noted above. However, if the Review
Committee were to move forward with procedures, the following
options would be preferable.

Procedures for identification of potential claimants. Option 2
seems an overbroad and huge effort, to which many tribes will
like]y not have the manpower or funds to respond. We prefer
Option 1, although creation of the NPS maps may be very
difficult, and it would be better to find another way to
accomplish the purpose that would put museums and tribes back
into the center of decisions. After steps 1 and 2 of Option 1,
the tribes should request repatriation from museums and Federal
agencies, not the National Park Service—again to maximize the
ongoing consultation opportunities.

Procedures for reviewing claims. Again, Option 2 is clearly
preferable since it maximizes the chances for consultation
between museums or Federal agencies and the tribes, as
contemplated elsewhere in the law.

Procedures for making repatriations to Native American groups
without BIA recognition. As noted in the draft recommendations,
the term "Indian tribe" for the purposes of the Act includes
groups "eligible for the special programs and services provided
by the United States to Indians because of their status as
Indians," and the Department of the Interior has interpreted that
as equivalent to groups formally recognized by the Bureau of
Indian Affairs as "tribes." This existing definition and
interpretation affects not only culturally unidentifiable human
remains but all other aspects of the application of the law.
Thus, to open up the definition for the purpose of dealing with
culturally unidentifiable human remains would be to open up many
other issues, including museums' potential liability for breach
of public trust for recognizing groups outside the law.

Yet the Committee points out an important situation: where "There
are remains that can be directly traced by a preponderance of the
evidence to tribes, villages, communities of Native Americans
that may not be formally recognized by the Bureau of Indian
Affairs as 'Tribes.' In these cases, the remains are only
•unidentifiable' because of the wording of the Act."

In such a situation, the affected tribe could be encouraged to
apply for formal recognition by the BIA. Barring that option, we
believe that the law is straightforward, and going further would
require a statutory change.

141

Again, we appreciate the opportunity to comment, and we look
forward to continuing the dialogue about subsequent drafts of the
recommendations .

Sincerely,

/MsC~

>3ason Y. Hall
Director
Government and Public Affairs

Nina Archabal, AAM Chair

Edward H. Able, Jr., AAM President

Patricia Williams, AAM Vice-President, Policy and Programs

Andy Finch, AAM Assistant Director, Government and Public

Affairs
Roxanna Adams, AAM Coordinator, Technical Information Service

142

American
Association
of
Museums

January 22, 1996

The Honorable John McCain

Chairman

Committee on Indian Affairs

United States Senate

Washington, DC 20510-6450

Dear Mr. Chairman:

Thank you very much for giving the museum community an
opportunity to testify at the December 6 hearing on
implementation of the Native American Graves Protection and
Repatriation Act.

In response to your letter of December 15, posing additional
questions for the record, AAM would like to make the following
comments :

1. Question: Do you believe that the Department of the
Interior adequately consulted with the museum community
during the development of the draft and Final regulations?
Do you have any comments on the content of the Final
regulations?

Answer: We believe that the Office of Archaeological
Assistance at the National Park Service, which is the part
of the Department tasked with administering the law, has
made extensive efforts to consult with the museum community
and with the other parties to the law. The difficulty has
not been there but with the slow pace of approval of the
regulations elsewhere in the Department and the
Administration. The final regulations are not exactly as we
would have wanted them, but, as with the underlying law
itself, they reflect an acceptable compromise with which the
museum community is prepared to comply so that the process
mandated in the law can go forward in as timely a way as
possible .

2. Question: What is the opinion of the American Association
of Museums regarding the disposition of unidentified and
unclaimed human remains? Do you believe the Secretary of
Interior should promulgate regulations regarding this issue?

1225 Eye Street Telephone

Northwest (2 02) 289-1818

Washington DC FAX (202) 289-6578

20005 TTY (202) 289-8439

143

Answer: As you know, this is an issue which has come
under discussion before the NAGPRA Review Committee, which
has requested comments from the chief parties to the law on
an initial proposal. AAM has responded to Review Committee
in detail; I am enclosing a copy of those comments, for your
information. Given the number of unresolved fundamental
issues in this area at this time, we urge strongly that the
Secretary not issue regulations on this matter at this time
but rather, as the Review Committee itself indicated,
continue to try to resolve some of these fundamental issues
first .

Question: Do you know of any case examples of tribes and
museums developing a cooperative agreement to protect
confidential information regarding the sacredness of ritual
ceremonies and objects?

Answer: None has come to our attention to date.

On the questions regarding the Federal District Court case
Na Iwi Na Kupana Mokapu, Heleloa, Ulupa'u A Me Kuwa'a'ohe v,
John Dal ton: '

Question: One of the issues the plaintiffs in the action
raised was whether the Freedom of Information Act applies to
information derived from the development of the inventory of
Native Hawaiian remains authorized by the Native American
Grave Protection and Repatriation Act. The court found that
the Freedom of Information Act (FOIA) applied to the
inventory information, and that no exemption under FOIA
would protect that information from public disclosure.

The Committee is interested in securing your views on:

(1) whether such information, derived from the NAGPRA
inventory process, should be subject to public disclosure;

(2) whether the Congress should act to amend NAGPRA to
provide protection from public disclosure of information
derived from NAGPRA inventories; (3) whether protection from
public disclosure of information derived from NAGPRA
inventories should be limited in scope, and if so, in what
respect; and (4) whether NAGPRA inventory information should
be exempted from application of the Freedom of Information
Act.

Answer : We believe that, consistent with NAGPRA as it
stands and with FOIA, information derived from the NAGPRA
inventory process should be subject to public disclosure,
and that NAGPRA should not be amended to restrict that

144

disclosure, nor should NAGPRA inventory information be
exempted from FOIA. As the Federal Court indicates, the
presumption behind FOIA is that maximum disclosure of
Federal information is in the best interests of the country
except in a handful of specific cases laid out in FOIA.
Thus there would need to be a very powerful public policy
reason to override that intent in NAGPRA, and that test has
not been met.

In addition, we see a logical problem in moving from
full disclosure. Limiting information in the inventory to
release to only one "privileged" tribe or group would very
likely prevent other tribes with potentially valid claims to
objects from being able to know that they might claim
ownership.

Finally, we agree with the Court that privacy tests are
not met with repatriable items, and given that fact, there
are not good reasons to amend NAGPRA to become a
"withholding statute" under FOIA definitions, with an
explicit special exemption from FOIA.

Question: Section 3003(a) of NAGPRA requires each Federal
agency and each museum possessing Native American human
remains and associated funerary objects "to compile an
inventory of such items., and to the extent possible based on
information possessed. .. identify the geographical and
cultural affiliation of such item."

Section 3003(b)(2) of NAGPRA states that upon request
of an Indian tribe or Native Hawaiian organization, a museum
or Federal agency shall supply additional available
documentation to supplement the information required by
subsection (a). This subsection also defines
"documentation" as meaning a summary of "existing museum or
Federal agency records" and further notes that the term does
not mean, nor authorize "the initiation of new scientific
studies of such remains and associated funerary objects or
other means of acquiring or preserving additional scientific
information from such remains and objects."

The district court also ruled that "further
examination" of the remains was legally permissible, and
"impliedly approved" by the Congress, despite the fact that
neither the geographical nor cultural affiliation of the
remains was in question.

(a) In your opinion, does NAGPRA, as currently enacted,
sufficiently address the issue of necessary scientific

145

studies which may be initiated during the course of
compiling an inventory pursuant to NAGPRA?

Answer : Yes. As the Court found, Congress explicitly
anticipated, and left considerable room for, studies prior
to completion of the inventory to aid in the inventory
process, and the law also provides in Sect 11(1) (B) for
agreements between culturally affiliated tribes and museums
on the repatriation process which could include agreements
on scientific studies.

(b) NAGPRA defines neither "inventory" nor "scientific
studies" nor "scientific information." Do you believe that
such definitions may be warranted, given the district
court's ruling?

Answer: No. "Inventory" is defined already in Sect 5(e),
and "scientific studies" and "scientific information" are
sufficiently clear, while additional attempts to define the
terms legislatively would complicate the implementation of
the law. If further refinements of definitions become
necessary as specific circumstances arise, the NAGPRA Review
Committee could recommend them, in consultation with the
museum and tribal communities, as part of its duties under
NAGPRA to help make the process work.

(c) In your opinion, under what circumstances, if any,
would further scientific studies, either during the course
of compilation of an inventory or after the conclusion of
such an inventory, be warranted?

Answer : We do not think that a comprehensive list of when
such studies may be necessary can be compiled at this time.
Circumstances which no one can currently anticipate are
likely to arise as the repatriation process continues.
However, such a list would include cases where other
practical means of establishing cultural affiliation had
been exhausted; where the process created by the law could
not otherwise move forward, as in the case considered by the
Court; and where the culturally affiliated tribe and the
museum had agreed that the studies should proceed,
consistent with Sect 11(1) (B). Again, any clarification
which might be needed here would probably best be undertaken
by the NAGPRA Review Committee, in consultation with tne
museum and tribal communities.

3. Que stion: The plaintiffs in the action also sought to
assert protection for Native Hawaiian human remains in a

146

guardianship capacity, but the district court found that
NAGPRA does not authorize legal actions in that capacity.

In your view, should the Congress amend the Act to
provide authority for legal actions to be brought by those
who may gualify to serve as guardians for purposes of
invoking the protection of the Act on behalf of Native
American human remains?

Answer: No. There are legal conseguences that would
arise for other bodies of law where guardianship has been
defined. In addition, there would be an important logical
problem: how would one determine who would have standing as
guardians, especially where there are multiple claims for
repatriation? Finally, as the District Court points out,
even if Congress granted guardianship in NAGPRA, the human
remains would still not have legal standing under common law
reguirements, and without such standing, as the Court notes,
"discussion of about any kind of guardianship. .. is moot."

The museum community appreciates the Committee's interest in
seeing that the implementation of NAGPRA proceeds as effectively
as possible and for the opportunity to comment on these guestions.

Sincerely,

^W*l

ason HaZ/I
Director
Government and Public Affairs

Edward H. Able, Jr., AAM President and CEO

Nina Archabal, AAM Chair

Dan Monroe, Immediate Past AAM Chair and Member, NAGPRA

Review Committee
William Moynihan, President, Milwaukee Public Museum
Patricia Williams, AAM Vice President, Policy and Programs
Roxana Adams, AAM Coordinator, Technical Information Service
Andy Finch and Kristi Walker, AAM Government and Public

Affairs staff

(with incoming letter)

147

STATEMENT OF TESSIE NARANJO, MEMBER and CHAIRPERSON,
REVIEW COMMITTEE, NATIVE AMERICAN GRAVES PROTECTION AND
REPATRIATION ACT, BEFORE THE SENATE COMMITTEE ON INDIAN
AFFAIRS REGARDING THE STATUS OF IMPLEMENTATION OF
NAGPRA

December 6, 1995
I am Tessie Naranjo an Indian person from Santa
Clara Pueblo, New Mexico. I appreciate the opportunity
to offer testimony as member and Chairperson of the
National Review Committee for NAGPRA.

The individuals selected in Spring 1992 to serve
as Review Committee members have worked for four years
meeting at least twice each year working on various
aspects of NAGPRA such as refining the Regulations
which implement the statute. These Regulations have
just been published in the Federal Register. Other
activities of the Review Committee include consider-
ation of five dispute cases, oral testimony from 93
individuals during 1992-1994, many of whom represented
Indian tribe3 or are of Indian descent. At our last
meeting in Anchorage, Alaska, October 16-18 of this
year, we discussed the 120 written comments received on

148

our draft recommendations regarding the disposition of
Culturally Unidentifiable Human remains and Associated
Funerary Objects.

We have experienced frustrations over a number of
issues. These frustrations and concerns became the
recommendations in our 1993/1994 Report to Congress.
What I wish to do now is summarize these
recommendations:

1. That Congress clarify the meaning of "Indian

Tribe" within NAGPRA in order to permit Native
American groups not presently recognized by
the Department of Interior Bureau of Indian
Affairs to repatriate their human remains,
funerary objects, sacred objects, or objects
of cultural patrimony,

2. That Congress appropriate at least $10 million

for FY96 to help Indian tribes, Native
Hawaiian organizations, museums, and
universities in complying with NAGPRA
directives.

149

3. That Congress take steps to assure that the

Smithsonian complies with all NAGPRA
requirements.

4. That Congress consider legislation to protect

Native American and Native Hawaiian graves
located on state or private lands from grave
robbing and other kinds of destruction.
I wish now to make comments with regard to
funding. For FY1994 and FY1995, the total amount of
NAGPRA grants was under five million dollars and the
total request from tribes and museums was thirty
million dollars. The number of grant requests will
increase with this coming Fyl996 grant applications.
We need increased funding for the grant program.

Increased funding is also needed for the costs
involved in Federal Register notices due to the
increased number of inventory notices of Human remains
and Associated Funerary Objects. One of the effects
will be the inundation of work related to the
documentation of these inventories of human remains by

150

the NAGPRA administrative staff and the Review
Committee.

We expect that as the inventory notices increase
the number of disputes will rise. Disputes always
prolong conflicts and involve the time of the limited
NAGPRA staff. It also requires more consideration of
dispute hearings by the Review Committee.

Additionally, more funding is needed by the NAGPRA
staff to implement the Civil Penalties section
currently being reviewed by the Department. This
section deals with those individuals and institutions
who are in non-compliance. Investigative work is a
crucial process in determining non-compliance.

Our recommendation in our 1993/1994 Report to
Congress was that it appropriate $10 million in FY1996
to continue to implement the Native American Graves
Protection and Repatriation Act. This amount is
absolutely essential if we are to effectively carry out

the intent of NAGPRA,

1
Lastly, Mr. Chairman I want to make mention that

the Keepers of the Treasures, a national organization

151

promoting cultural preservation of tribes is in support
of the efforts of the NAGPRA staff and the Review
Committee and supports our request for $10 million for
FY 1996. Thank you.

152

February 1996

Questions by Senator John McCain, Chairman, Senate
Select Committee on Indian Affairs, responses by Tessie
Naranjo, Chairperson, Native American Graves Protection
and Repatriation Act.

1) Do you feel that the Review Committee and the
Department of Interior adequately consulted with Indian
tribes during the process of developina the final
regulations to implement the Act?

Yes. The Review Committee has held a total of ten
meetings since April. 1992. We deliberately held these
meetings around the country to give an opportunity for
tribal people to attend Review Committee meetings and
to make comments about NAGPRA concerns. Additionally,
several draft regulationss were sent directly to tribes
for comments.

la) What specific efforts have been taken by the
Department to consult with Indian tribes in the
development of these regulations?

-Review Committee meetings provided an opportunity
for testimonies from tribes.

-As draft regulations were completed these were
distributed to Indian tribes for comments.

2) Can you provide to the Committee a summary of the
five dispute cases that you referenced in your
testimony?

1. Univ. Calif., Hearst Museum vs Hui Malama

2. Marine Corps vs Hui Malama and others

3. Oneida vs Oneida vs Chicago Field Museum

4. Santanta descendants vs Univ. Calif, Hearst

153

3) Following four questions related to the Federal
District case, Na Iwi Na Kupuna Mokapu, Heleloa,
Ulupa'u A Me Kuwa'a'ohe vs John Dal ton:

a) Should such information, derived from the
NAGPRA Inventory process be subject to public-
disclosure?

Information derived from the NAGPRA Inventory
process should not be subject to public disclosure.
This information is basic and is meant to give just
enough information in order for tribes tc make
decisions about human remains.

b) Should Congress amend NAGPRA to provide
protection from public disclosure of information
derived from NAGPRA inventories?

No, Congress does not need to amend NAPRA in order
to provide protection from public disclosure.

c) Should protection from public disclosure of
information derived from NAGPRA inventories be limited
in scope and if so, in what respect:

This question appears to be another version of
above question. My response was, no, Congress does not
need to amend NAGPRA to provide protection from public
disclosure of information

d) Should NAGPPA inventory information be
exempted from the application of the FOIA?

No.

4) In your opinion, does NAGPRA, as currently enacted,
sufficiently address the issue of necessary scientific

154

studies which may be initiated during the course of the
compiling of an inventory pursuant to NAGPA?

The law requires a minimum amount of information
for inventories (i.e., acquisition date, description
such as dimensions and antiquity of human remains) .
This section does not discuss the issue of scientific
studies but in another section the law says, scientific
studies can be conducted when it is of "major benefit
to the U.S.".

5) NAGPRA defines neither "inventory" nor "scientific-
studies" nor "scientific information". Do you believe
that such definitions may be warranted given the
district court's ruling?

NAGPRA defines "inventory" as "..the item-by item
description of human remains and associated funerary
objects". Neither "scientific studies" or scientific
information" is defined nor is it used in the law - no
definition is required.

6) In your opinion, under what circumstances, if any,
would further scientific studies, either during the
course of compilation of an inventory or after the
conclusion of such an inventory, be warranted?

The law says when it is of major benefit to the
U.S.

7) In your view, should the Congress amend NAGPRA to
provide authority for legal actions to be brought by
those who may qualify to serve as guardians for
purposes of invoking the protection of the Act on
behalf of Native American human remains?

This is a question which cannot be answered with a
"yes" or "no". Who is the "guardian"?

155

TESTIMONY SUBMITTED TO THE
SENATE COMMITTEE ON INDIAN AFFAIRS:

OVERSIGHT HEARING ON IMPLEMENTATION OF THE
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

PUBLIC LAW 101-601

January 18, 1996

Kunani Nihipali. Po'o

156

I am Po^o (leader) of Hui Malama I Na KQpuna *0 Hawai'i Nei
(Hui Malama) , a Native Hawaiian organization dedicated to the
care and protection of ancestral Native Hawaiian remains. Our
kumu are Edward and Pualani Kanahele of Hilo.

Pursuant to NMAT and NAGPRA, Hui Malama has repatriated and
reinterred ancestral Native Hawaiian remains and funerary objects
from the Smithsonian National Museum of Natural History, Bernice
Pauahi Bishop Museum, American Museum of Natural History, Field
Museum of Natural History, University of Alaska Museum, Brigham
Young University Museum of Peoples and Cultures, Milwaukee Public
Museum, San Diego Museum of Man, University of Pennsylvania
Museum of Archaeology and Anthropology, Sacramento Science
Center, Peabody Essex Museum, University of California Hearst
Museum, University of Oregon Museum of Anthropology, Harvard
Peabody Museum of Archaeology and Ethnology, Yale Peabody Museum
of Natural History, Dartmouth Hood Museum of Art, Earlham College
Moore Museum, and Los Angeles County Museum of Natural History.

Internationally, Hui Malama was repatriated ancestral Native
Hawaiian remains and burial objects from the Royal Ontario Museum
(Toronto, Canada), Universitat Zurich-Irchel Anthropologisches
Institut Und Museum (Switzerland) and South Australian Museum.

in 1995, Hui Malama filed suit against the U.S. Navy and
Bishop Museum for violating NAGPRA by conducting scientific
studies on over 1,500 ancestral Hawaiians thereby failing to
expeditiously repatriate. The remains originated from Mokapu,
Heleloa, Ulupa'u and Kuwa'a'ohe, Ko v olaupoko district, O'ahu.

157

Hui Malama sought to have the scientific information
recorded from these ancestral Hawaiians expunged from the NAGPRA
inventory report published by the Navy. We viewed the scientific
studies as unnecessary since cultural affiliation was already
known by a reasonable belief to be Native Hawaiian, and more
importantly, as personal violations of the integrity and sanctity
of these ancestors.

In our view, the scientific studies were outright violations
of kanawai (Hawaiian law) , amounting to a theft of mana (energy) .
The law suit sought to delete the scientific information in order
to help restore that mana to the ancestors which is necessary for
their spiritual well being. Protection of the mana of the Mokapu
ancestors is part of the responsibility to malama (care for) .

However, the district court found that the conduct of
scientific studies by the U.S. Navy on the Mokapu remains did not
violate NAGPRA and instead is consistent with NAGPRA' s goal of
identifying remains for repatriation. Moreover, the court said
Congress impliedly approved further research on human remains
during the inventory in order for museums and federal agencies to
better comply with NAGPRA' s identification and repatriation
requirements.

The court ruled that the Mokapu inventory is subject to the
disclosure requirements of the Freedom of Information Act
("FOIA") as none of the FOIA exemptions were applicable. The
court found that NAGPRA does not contain any language evincing a
legislative intent to limit disclosure of inventory information.

23-074 96-6

158

The court's ruling will allow unnecessary desecration of
ancestral Hawaiian remains already disturbed from sacred burial
Bites. The adverse effect on the living includes placement of a
heavier burden on those who accept the responsibility to malama i
nS iwi kupuna (care for the ancestral bones) .

As a result of the court's decision, Hui Malama offers the
following recommendations for the Committee's consideration.
These recommendations are intended to further strengthen the
civil rights nature of this important legislation.
I . The Role of Scientific Study Must Be Clarified

NAGPRA should be clarified to state that where existing
documentation establishes geographic location and cultural
affiliation either by clear, reasonable belief, or the
preponderance standard of evidence, scientific studies of any
kind on ancestral skeletal remains are prohibited. Furthermore,
scientific study or any other form of recording or preserving
scientific information from human skeletal remains during the
NAGPRA inventory process should only be allowed when existing
documentation fails to satisfy any of the applicable NAGPRA
standards of identification.

Acquisition of scientific information from possible Native
Hawaiian remains should only be allowed where a thorough review
of all existing information possessed by a museum or agency fails
to establish cultural affiliation by a reasonable belief and
where the additional evidence provided by a Native Hawaiian
organization fails to satisfy the preponderance standard.

159

The scope of any scientific study deemed to be necessary to
establish cultural affiliation and initiated during the inventory
process must be strictly limited to the determination of cultural
affiliation by a preponderance. Since the preponderance of
evidence is not a high standard, only minimal scientific
information should be allowed to be acquired. Once the
information acquired establishes cultural affiliation to be more
likely than not, the inquiry must end.

Recording of scientific information not related to, or in
addition to, the establishment of cultural affiliation should be
clearly prohibited. Necessary scientific study must be viewed as
a last resort in the NAGPRA identification process.

Furthermore, scientific study to clarify cultural
affiliation should only be conducted where the museum or federal
agency and Tribe or Native Hawaiian Organization agree that none
of the NAGPRA identification standards have been satisfied based
on available documentation evidence, or after the matter is
submitted to the NAGPRA Review Committee as a dispute, the
Committee recommends scientific study, and the parties agree.

Since treatment of ancestral remains is and will always be a
fundamental attribute of sovereignty and self-determination, the
aforementioned concerns should be framed as a consensual issue
allowing for those Tribes or Native Hawaiian organizations who,
once cultural affiliation is established, wish to have additional
scientific studies conducted, may elect to do so. This way,
those Tribes and Native Hawaiian organizations who object to

160

further scientific study will have their wishes respected as well
the wishes of those who request additional study.

In addition, the terms "scientific study" and "scientific
information" need to be defined. Scientific study should be
limited only to the observation of metric and non-metric traits
necessary to help suggest ethnicity by a preponderance of the
evidence. Destructive analysis methods such as mitochondrial DNA
analysis and radio carbon dating, as well as x-rays should be
strictly prohibited.

Following review of the recently promulgated NAGPRA
regulations, Hui Malama believes there is a further need to
clarify the inventory process to avoid unnecessary scientific
study.

NAGPRA defines "inventory" to be a "simple itemized list"
and section 10.2(g) (2) of the regulations further defines the
term to be an "item by item description of human remains and
associated funerary objects." Section 10.9(c)(3) provides that
information required in the inventory of human remains and
associated funerary objects include "dimensions" and "if
appropriate, photographic documentation."

Hui Malama is concerned that the term "dimensions" may be
applied to human remains and interpreted to include measurements,
a form of scientific study. The regulations seem to require a
form of scientific study of human remains during the inventory
process, despite the fact that cultural affiliation may be
otherwise established by existing documentation.

161

Finally, for the reasons stated above, this Committee should
consider deleting NAGPRA section 7(b) relating to completion of
scientific study "the outcome of which is a major benefit to the
United States."

The aforementioned recommendations will help clarify the
role of scientific study in the inventory process and provide for
limited studies to clarify cultural affiliation only when
necessary.

II. Photography of Native American Human Remains Should be
Expressly Prohibited Unless Consent Provided

In addition, Hui Malama is concerned as to whom finally
decides whether photographic documentation is appropriate and
what criteria controls such a determination. Our experience has
Bhown that museums in possession of ancestral Native Hawaiian
remains ultimately decide this issue, regardless of any
objections raised.

Hui Malama views photographs as another offensive form of
taking /nana. We strongly urge the Committee to amended NAGPRA to
provide a clear prohibition on the photography of Native American
human skeletal remains absent establishment of cultural
affiliation and only upon the express consent of the culturally
affiliated Tribe or Native Hawaiian organization.

III. NAGPRA Should Be Amended to Become a Withholding Statute
NAGPRA inventories contain certain sensitive information

including burial location and measurements and descriptions of
human remains where scientific studies are conducted to clarify
cultural affiliation. Persons interested in grave robbing, may

162

UBe the locational information to find extant burial sites.

Moreover, ae a matter of personal privacy, persons not culturally

affiliated to ancestral remains should not have the right to

access information derived from scientific studies.

Due to this sensitivity and the potential for harm, Hui

MSlama believes that those Tribes and Native Hawaiian

organizations who wish should have the right to prevent public

disclosure of certain types of inventory information. Once

cultural affiliation is established, the culturally affiliated

Tribe or Native Hawaiian organization should have final say over

treatment of sensitive inventory information, as a fundamental

right and as a function of their inherent sovereignty.

Therefore, we urge the Committee to consider amending NAGPRA

to explicitly state in unambiguous terms that burial location

information and any information derived from a scientific study

conducted during an inventory to clarify cultural affiliation

shall not be released to the public, but instead be kept

confidential. Such an amendment will help qualify NAGPRA as a

withholding statute for FOIA purposes .

IV. Congress Needs to Appropriate Adequate Funding to Implement
NAGPRA

Congress has appropriate only $ 4.37 million for grants to
museums, federal agencies, Tribes and Native Hawaiian
Organizations to implement NAGPRA. One important aspect of the
NAGPRA process that is adversely affected by the lack of adequate
funding is consultation.

In order for consultation between federal agencies, museums

163

and Tribes and Native Hawaiian Organizations to be meaningful,
for accurate information to be communicated back and forth, face
to face meetings and inspections of cultural items are
imperative. Congress needs to stand by the intent of NAGPRA and
providing more meaningful funding by doubling appropriations for
the next three years. Only then will the difficulties
surrounding repatriation be sufficiently addressed and justice
extended to those ancestors adversely affected by the past
through removal from sacred burial sites.

164

V. NAGPRA should Provide the Remains and Guardians with Standing

The district court concluded that the ancestral Hawaiian

remains which Hui Malama sought to protect from further desecration

did not have standing to sue in their own capacity because: 1)

Nagpra did not expressly confer standing on the remains, and 2) th«

remains did not suffer an "injury- in- fact" recognized at law. Ab

the district court wrongly noted,

Objects or entities without any attributes of life in the
observable or provable sense are generally not afforded
a legally-protected interest for standing purposes.

Na Iwi v. pa;ton, 894 F. Supp. 1397, 1407 (D. Haw. 1995). As

testified extensively by Hui Malama 's witnesses, our ancestral

remains are considered "persons" that deserve our utmost care and

respect. The district court clearly showed its discrimination in

favor of legally-recognized western "injuries" when it remarked

that inanimate object, such as ships and corporations, had standing

to sue in their own behalf because they ■ are legal fiction*

created for the benefit of our society. .. [and would] facilitate]

business and commerce, which in turn furthers societal interests

and benefits individual persons." Na iwi . 894 F. Supp. at 1407.

Protecting our KUPUna , under Hawaiian tradition and custom, serves

an equally useful purpose that benefits our society! According to

tradition and custom, our ancestors have been injured by disrupting

their journey to the afterlife. Failure to protect our ancestor.

on their peaceful journey to the afterlife will mean repercussions

for the living, including members of Hui Malama. Accordingly, this

Congress can correct this omission by amending NAGPRA to reflect

the importance of ancestral remains to living native Americans by

165

allowing the remains to sue on their own behalf.

Moreover, the district court concluded that Hui Malama does
not have standing to sue as guardians on behalf of the ancestral
native Hawaiian remains because: 1) NAGPRA does not confer
guardian status on Hui Malama, and 2) tradition and custom under
Hawaiian law did not dictate that Hui Malama become the sole
guardian of the remains. The district court erred in its analysis.
Tradition and custom dictated that a Hawaiian individual or
organization protect their ancestors from being robbed of their
spiritual mana , or power during the inventory process. Hui Malama
was not seeking status as a legal guardian, but simply as a
"spiritual" guardian or advocate on behalf of the remains. The
Federal defendants could not disprove, nor were there any Hawaiian
individual organizations who came forward to object to, Hui
Malama' s claim to advocate as "guardian" on their behalf.
Recognizing the importance of Native American and Hawaiian beliefs
that remains are simply not "cultural items", but rather as living
persons capable of suffering injury to their dignity, reputation,
etc. Accordingly, NAGPRA should be amended to allow native American
tribes and native Hawaiian organizations the right to represent
their ancestors in court.

166

Supplemental Testimony Submitted to

Senate Conmittee on Indian Affairs

Concerning Oversight Hearing en

Implementaticn of P.L. 101-601, December 6, 1995

Native American Graves Protection and Repatriation Act"

Robert M. Peregoy

Senior Staff Attorney

Native American Rights Ftmd

1712 N Street N.W.

Washington, D.C. 20036

Phone (202) 785-4166

Fax (202) 822-0068

167

SUPPLEMENTAL TESTIMONY

SUBMITTED TO THE

SENATE COMMITTEE ON INDIAN AFFAIRS

OVERSIGHT HEARING, DECEMBER 6, 1995

NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

The Native American Rights Fund (NARF) is a public interest, nonprofit law
firm dedicated to serving the legal needs of Indian tribes and Native Americans .
As a nationally-oriented law firm, NARF has represented several Indian tribes and
one tribal official in state and federal repatriation matters over the course of
the last decade. NARF submits the following supplemental testimony in
conjunction with two clients, the Pawnee Tribe of Oklahoma and Judi Morgan,
former repatriation officer of the Ponca Tribe of Nebraska. This supplemental
testimony is submitted in response to the reguest of the Honorable John McCain,
chairman of the Senate Indian Affairs Committee.

Scope of Final NAGPPA Regulations

We endorse and adopt the distinguished testimony of the American Indian
Ritual Object Repatriation Foundation (ATRORF) regarding the development and
scope of the final regulations implementing NAGPRA.

NAGPRA Inventory Process and Further Scientific Studies

Congress needs to amend NAGPRA to unequivocally and expressly prohibit any
further scientific studies of human remains and associated funerary objects, at
a minimum where cultural affiliation is known or can be determined based upon a
preponderance of existing information. In most cases, museums have retained the
dead bodies and funerary objects of Native ancestors for decades. They therefore
have had ample time to conduct whatever studies they felt were necessary.

However, it still seems to escape certain museums and social scientists
that their "scientific specimens" are the remains of human beings, some who were
buried during the late nineteenth century — the recent past considering that such

168

are the remains of grandparents of some Native people living today. To many
Indian tribes and Native peoples, the dead are sacred. Any disturbance of the
dead (or their funerary objects) is a sacrilege. This includes "further
scientific studies." Such sacrilegious mistreatment is deeply offensive and
inflicts real pain on Native peoples, communities and tribes. Congress has a
responsibility to see that this does not happen.

Moreover, "further scientific studies" where cultural affiliation is known
has caused needless, acrimonious controversy between Indian tribes and museums,
which can culminate in unnecessary, costly legal expenses and litigation. A
prime example is the current conflict involving the Ponca Tribe of Nebraska, the
Ponca Tribe of Oklahoma and the University of Nebraska.

Briefly stated, the University of Nebraska, under the auspices of Professor
Karl Reinhard, conducted destructive analyses on Ponca remains — when there was
never any guestion about cultural affiliation. The Ponca Tribes protested this
outrageous conduct. The Ponca Tribe of Oklahoma threatened to sue the University
for performing the unauthorized destructive analyses. See Exhibits 1 and 2.

Although the University of Nebraska ultimately placed a moratorium on
destructive testing, the damage to the remains and the living Ponca descendants
and tribes had been done. Judi Morgan, the repatriation director of the Ponca
Tribe of Nebraska, described her opinion of Reinhard's work as "insensitive,"
"distasteful," "dehumanizing" and "disrespectful." She further suggested that
Reinhard's destructive analyses may constitute possible violations of NAGPRA.
Reinhard's attorney wrote an intimidating letter threatening to sue Morgan for
libel and slander, for merely voicing her opinion about Reinhard's mistreatment
of the remains of her ancestors. See Exhibit 3. In turn, Morgan was forced to
enlist the assistance of the Native American Rights Fund to defend against

169

Reinhard's ultimately hollow, yet intimidating threat of suit. See Exhibit 4.
Reinhard quickly backed off, but the situation between the tribes and the
University appears to remain unresolved at this time.

This is merely one example of controversies triggered by "further
scientific studies" when cultural affiliation of human remains is known.
Congress can and should prevent these unfortunate, costly and ultimately
unnecessary conflicts by amending NAGPRA to expressly prohibit further studies
of human remains and funerary objects when cultural affiliation is known, absent
express written consent of the governing bodies of affected tribes, individuals
or entities.

NARF, the Pawnee Tribe of Oklahoma and Judi Morgan are deeply appreciative
of the Committee's continuing concern and interest to assure that NAGPRA is
properly and fully implemented.

170

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171

EXHIBIT

Poncas
protest
destructive
bone tests

BY JOE DUGGAN

Potentially unlawful studies of
American Indian skeletal remains
have left members of the Ponca
Tribe of Nebraska feeling victinV

ago the Ponca
Tribe rebuned
bones and arti-
facts that had
been uncovered
bv archaeolog-
ists in 1937 In the
process of ob-
taining the re-
mains from the
University of Ne-
braska-Lincoln,
members of the
tribe learned that destructive tests
had been done on some of the re-
mains without the tribes written
permission.

"Were tired of being looked at.*
said Jucu Morgan of Lincoln, a mem-
ber of the Ponca Tribe "This kind of
testing dehumanizes us It's disres-
pectful"

Anthropology Professor Karl Re-

10A

FROM I

Poncas/Tests mix acid with bones to get information

cems about potential litigation re-
sulting from destructive analyses.

The memo asked questions cased
on a university lawyer's interpreta-
tion of the federal Native American
Graves Protection and Repatriation
Act. which passed in late 1990

The lawyer's opinion slated that
"everything that had been done aft-
er 1991 was clearly illegal.* accord-
ing to Reinhard No one asked for a
legal opinion about the testing until
More on PONCAS. Page 10A

Continued from Page 1 A

four years after the federal law was

-What appalled the hell out of me
-was-all through this period I had
Ibeeri assured that we were working
■within the limits of NAGPRA.* Re-
inhard said. "Profound ignorance by
Ithe administration of the essential
law put me in jeopardy. I was abso-
lutely floored.*

■ *-. University General Counsel John
^Wiltse said the opinion was confi-
;dential and he refused to discuss it
Helconiirmed, however, that he had
not" been consulted about destmc-
llive'testing of remains until earlier
thisyea :

The university started a mora-
torium on destructive testing in the
summer of 1993. Wiltse said, to his
knowledge, no destructive tests
hive been conducted since then.
That leaves a 2 ! i-year gap during
which destructive analyses were
•done.

I The tests involve mixing acid
with a small amount of bone in order
to- obtain collagen. The collagen is
put in an isotope ratio mass spec-
trometer, which separates stable
forms of carbon and nitrogen. From
this -information, scientists can learn
details about disease and dietary
habits of the individual.

Reinhard successfully used infor-
mation obtained by tests done on
Omaha Indian remains in 1989 Oma-
ha tribal leaders gave their bles-
- sings to the research.

Reinhard's findings provided cul-
tural information about the tribes
ancestors In addition, dietary data
helped establish a link between high-
fatdlets and the high incidence of di-
abetes among tribal members Both
the Omahas and VSL administra-
tors praised the cooperative effort,
saying it proved that scientific study
of ancient bone could benefit both
science and descendants.
• Reinhard's pilot study included
destructive tests of Ponca remains.
The Ponca Tribe of Nebraska —
which dissolved in 1962 — was re-
Stored in late 1990. Reinhard said he
ordered the tests before the tribe's
restoration in 1990 and before the
passage of the federal repatriation
law.

The law — passed in late 1990 —
required museums and universities
to compile inventories of American
Indian burial remains by Nov 15 of
this year so the remains could be re-
turned to the tnbes. University offi-
cials said the destructive tests were
used to determine whether the
bones were related to the Poncas or
one of the other tr:bes that also lived
in northeast Nebraska, and. there-
fore, they complied with NAGPRA.

The law stipulated, however, that
researchers could not use the inven-

versity administrators: William
Splinter, the former vice chancellor
for research, and Hugh Genoways.
the former director of the Universi-
ty of Nebraska State Museum What
was said at the meeting is crucial to
explaining whether the university
acted within the requirements of the
law in conducting the tests.

Discussions at the meeting cen-
tered on Reinhard's work with the
Omahas. At some point, the adminis-
trators asked LeRoy if the Poncas
would be interested in having simi-
lar analyses of remains on their an-
cestors.

LeRoy. who at the time was di-
rector of the tribe's restoration com-
mittee, adamantly denied that he
granted permission for the testing
_ To have given permission would
have required a written agreement
from the Ponca interim tribal coun-
cil." he said.

Genoways said he remembered
that LeRoy not only gave officials
permission to carry out the testing.
but he demanded that "the universi-
ty do the same for the Poncas that
they did for the Omahas."

Splinter said that LeRoy was non-
committal.

'I do not recall Fred giving us
any specific approval. I don't think
that at the time Fred was giving us
any approval or disapproval."
Splinter said.

Determinations about the legiti-
macy of testing hinge on whether
LeRov granted oral permission, said
Wiltse. the UNL lawyer.

"If it was done with the consent
of the tribe, no. I don't think it was a
violation' of federal law, he stated.

Despite an ambiguous response
from one member of the tnbe. de-
structive tests were authorized after
the meeting, according to Re-
inhard's records. Larry Tieszen. a
professor of biology at Augustana
College, confirmed that his laborato-
ry conducted such tests for UNL.

"I believe there were Ponca and
Omaha (remains) that were
involved," Tieszen said.

In 1992. Reinhard applied for a
S2S8.000 grant from the National En-
dowment for the Humanities He
wanted to money to analyze Omaha
and Ponca skeletal data to deter-
mine the impact of Europeans on
the culture and health of the tnbes.

Reinhard described the grant in a
letter sent a letter to the Ponca
Tnbe in Apnl 1993. In that letter, he
clearly pushed for an analysis of
Ponca remains that "will follow the
pattern of the Omaha analysis."

Within six weeks of Reinhard's
letter, a lawyer for the tnbe notified
the professor that the Ponca tnbal
council never authorized the study
detailed in Reinhard's grant request

about $100,000. He now says that the
grant study did not require destruc-
tive testing Because of a lack of
funds, staff used the grant to shore
up results of the Omaha study and
the Ponca components essentially
were dropped.

Splinter and Genoways both reit-
erated that any testing was done to
prove cultural affiliation. Reinhard
said he told the men that destructive
analysts could prove cultural affilia-
tion, but it was Splinter and Geno-
ways who authorized the testing

"Every memo I had — including
from Bill Splinter — plotted the
work I was doing,* Reinhard said

Splinter passed the buck back to
the professor, saying that the admi-
nistration was not in the habit of di-
recting research by the faculty.

At the least, the tests represented
unethical treatment of materials
considered sacred by the tnbe.
according to Jack Trope, a New Jer-
sey lawyer who helped draft NAG-
PRA. He also questioned the
university s justification that testing
was done to prove tribal affiliation.

"Dearly that's not the intent of
Congress." he said. "It absolutely
says that's not what this act is about
Cultural affiliation has to be deter
mined based on existing evidence."

In the end. the Poncas got what
they wanted: the remains. Despite
the controversy over testing, univer-
sity officials returned the remains in
a timely fashion and members of the
tribe were happy to complete the re-

Perhaps as many as 1.000 individ-
uals encompassing 750 bunals are
contained in the state museum's col-
lection. The issue of repatnauon will
not go away any time soon, said
Morgan, who. in addition to being a
Ponca. is also director of the Ne-
braska Commission on Indian Af-
fairs.

Morgan said she has heard the
arguments about how the testing
used only a small amount of bone
and that they were done simply for
tnbal identification. She turned the
argument on the white culture that
predominantly conducted the test-
ing.

Historically, anthropology has
treated white remains differently
than Indian remains. While pioneer
skeletons quickly were returned to
the earth. American Indian skele-
tons were placed on a museum shelf.
That's discrimination, plain and sun-
pie Morgan said.

•Why should Indian remains be
treated any differently?" she asked
"You should have a right to know
that when your grandmother is bur-
ied, she will be left alone, not dug up
in 200 years and have her bones de-
stroyed to be put through isotopic
tests.*

172

: rece; 2 2 e

LAW OFFICES

BAILEY, POLSKY. COPE 8c KNAPP

SUITE 400. COOPER PLAZA BUILDING
2 I I NORTH I 2TM STREET

ROLLINR. BAILEY. PC.

LINCOLN. NEBRASKA 69508

AX A OENNEYI

THOM K. COPE TELEPHONE 402 476 8877

PATRICIA A. KNAPP FAX 402 476-0543

ANTHONY C. COE

November 21, 19 95

CERTIFIED - RETURN RECEIPT

Ms. Judy Morgan EXHIBIT

Nebraska Indian Commission

State Capitol Bldg.

Lincoln, NE . 68509 O

RE: Dr. Karl Reinhard v. Judy Morgan

Dear Ms. Morgan:

We represent Dr. Karl Reinhard in possible litigation
against you. This letter is written to you pursuant to Neb. Rev.
Stat. § 25-840.01. You have made slanderous and libelous
statements about Dr. Reinhard. Specifically, you have told
tribal leaders that Dr. Reinhard 's work was illegal. You have
attempted to have tribes sue Dr. Reinhard. You have made
statements in speeches denigrating Dr. Reinhard. We have
specific evidence that you made statements disparaging Dr.
Reinhard at various conferences. At those conferences you
discussed Dr. Reinhard 's work in an uncomplimentary fashion, and
in fact, made statements that his interview in the film "Bones of
Contention" were duplicitous. Dr. John Dendy has expressed grave
concern about your actions.

Moreover, your activities have made it virtually impossible
for Dr. Reinhard to work with Native American Tribes in North
America and he may need to take his funding to South America.
Under Neb. Rev. Stat. § 25-840.01, you have 21 days in which to
set the record straight. We expect letters to be sent to John
Dendy (713 S. Buckeye, Abilene, KS . , 67410), Steven Holen, Tom
Meyer, Fred LeRoy, Joe Dugan, from the Journal-Star, and other
Tribal leaders .

Your activities will result in a lawsuit against you unless
you immediately cease and desist your disparaging remarks and if
you fail to retract the mis-information you have been
disseminating. If we don't have copies of your letters within 21
days, I have been authorized to protect Dr. Reinhard's legal
rights.

Very truly yours,

'thom k. cope ( ~'y

TKCTjlc

cc Karl Reinhard

173

Native American Rights Fund

^1°'.-^"' 0C ' <:O ' I7I2NSHM. N.W. • Washington. DC. 20036-2976 • 1202)785-1166 • Fax (202) 822-0068

Ro'-wn M Ptfegoy (DC. CO)
•«dmilted in Califofn.j only

EXHIBIT

BY CERTIFIED MAIL # P004646036
RETURN RECEIPT REQUESTED

December 12, 1995

Thorn K. Cope, Esq.
211 North 12th Street
Suite 400, Cooper Plaza Bldg.
Lincoln, NE 68508

Re: Your November 21, 1995 Letter to Ms. Judi Morgan

Dear Mr. Cope:

We represent Judi Morgan in "possible litigation" which Dr.
Karl Reinhard has threatened pursuant to your letter to Ms. Morgan
dated November 21, 1995 (copy enclosed) . Therein, you demand that
Ms. Morgan "set the record straight" with regard to unspecified
"slanderous and libelous statements about Dr. Reinhard" which he
alleges she made. You threaten to sue her on behalf of Dr.
Reinhard unless she "immediately ceases and desists" making
alleged, unidentified "disparaging remarks," and if she fails to
retract alleged, unexplained "mis-information."

As set forth below, there is no truth or substance to the
inexplicit allegations alluded to in your letter. Your client
therefore has no cause of action against Ms. Morgan. Even if he
did, she is immune from suit.

You rely on Neb. Rev. Stat §25-840.01 in what amounts to
nothing more than a transparent attempt to threaten, intimidate and
coerce Ms. Morgan into renouncing her First Amendment right to free
speech This statute requires a plaintiff in an action for damages
for the publication of libel or invasion of privacy to request a
correction in order to recover more than special damages. The
statute requires the plaintiff to give each defendant a certified
or registered notice " specifying the statements claimed to be
libelous. . .and specifically requesting correction." (Emphasis
supplied) . Publication of a correction is required to be made
within three weeks after receipt "in substantially as conspicuous
a manner as the original publication about which the complaint was
made . "

174

Thorn K. Cope, Esq.
December 12, 1995
Page 2

Your November 21, 1995 letter fails in all respects to specify
the alleged libelous statements which your client attempts to
impute to Ms. Morgan. It does not identify any particular
"publication," nor does it refer to any specific content, date,
place or surrounding circumstances. It therefore falls far short
of the notice requirements of Neb. Rev. Stat. §25-840.01, and does
not constitute "notice" thereunder.

Moreover, your letter baldly demands that Ms. Morgan "retract
the misinformation [she has] been disseminating," as alleged. This
vague demand further fails to meet the statutory requirement to
"specifically request correction." It therefore does not
constitute a request for correction under Neb. Rev. Stat. §25-
840.01.

In short, the November 21 letter fails in all respects to
comply with the Nebraska statute upon which you rely to threaten
suit against Ms. Morgan. As a result, our client is left in the
dark as to what specific actionable statements she allegedly made.
Likewise, she is at a loss to understand what specific
"corrections" Dr. Reinhard wants or expects her to make.

Any comments Ms. Morgan may have made which may have upset Dr.
Reinhard are not false statements of fact; they are simply and
solely her subjective opinion of Reinhard' s and the University's
mistreatment of her ancestors' remains. Subjective opinions are
not libelous per se . They constitute free speech and are plainly
protected by the First Amendment. See Turner v. Welliver, et al . ,
226 Neb. 275, 291-93 (1987); K Corporation v. Stewart, 247 Neb.
290, 295 (1995) . See also, Beverly Hills Foodland, Inc. v. United
Food and Commercial Workers Union, Local 655, 39 F.3d 191, (196)
(8th Cir. 1994) (statement of opinion actionable only if it
reasonably implies false and defamatory facts and "only defamatory
facts that are capable of being proved false are subject to
liability under state libel law;" terms, such as "unfair," which
require a subjective determination are incapable of factual proof,
and are therefore not actionable) ; Wheeler v. Nebraska State Bar
Association, 244 Neb. 786, 789 (1993) (threshold question in
defamation suits is whether a reasonable fact finder could conclude
that the published statements imply a provably false assertion of
fact) .

Even if Ms. Morgan's statements would not qualify as
nonactionable pure opinion, the truth of her statements would serve
as a defense to any libel claim, should your client somehow succeed
in bringing and maintaining a suit against her. However, he cannot
do so.

You may be interested to know that officials of Indian tribes
enjoy common law immunity from suit when acting in their official

175

Thorn K. Cope, Esq.
December 12, 1995
Page 3

or representative capacity and within the scope of their valid
authority. Id. See Burlington Northern R.R. Co. v. Blackfeet Tribe
of Indians, 924 F.2d 899, 902 (9th Cir. 1991), cert, denied 505
U.S. 1212 (1992) . Ms. Morgan served as the NAGPRA Specialist
(Native American Graves Protection and Repatriation Act) for the
Ponca Tribe of Nebraska at all relevant times. During this period,
as part of her official duties and responsibilities, she was
unequivocally vested with authority to speak about the treatment of
the remains of Ponca ancestors. Therefore, she is immune from suit
under the doctrine of tribal sovereign immunity in the first
instance .

By all accounts, particularly the Lincoln Journal Star article
entitled "Poncas protest destructive bone tests," published two
days before your November 21 letter to Ms. Morgan, it appears that
Dr. Reinhard is running scared, and has sought to shift the focus
from possible unlawful conduct on his part (as well as on the part
of the University) to Ms. Morgan's constitutionally-protected
speech. However, threatening to bring a groundless lawsuit against
a former tribal official does nothing to resolve what apparently
has become another acrimonious relationship involving a state
agency and indigenous Nebraska Indian tribes and their officials.
This is particularly so where at least one of the tribes has
indicated it is considering suit against the University.

If anything, your client's November 21 bogus demand only
serves to exacerbate a tense situation. As counsel for the Pawnee
Tribe of Oklahoma against the Nebraska State Historical Society in
past repatriation matters, including litigation, I can assure you
that spurious tactics such as those employed in your November 21
letter can backfire and cause sensitive matters such as this to
explode, to the detriment of all concerned.

In closing, we expect you, on Dr. Reinhard' s behalf, to send
a letter to Ms. Morgan retracting the unfounded and false
allegations that Ms. Morgan "made slanderous and libelous
statements about Dr. Reinhard," as published in your November 21,
1995 letter We expect copies of this retraction to be sent to
John Dendy (713 S. Buckeye, Abilene KS 67410), Steven Holen, Tom
Meyer Joe Dugan of the Lincoln Journal-Star, and Fred LeRoy,
chairman of the Ponca Tribe of Nebraska (Lincoln Field Office 3341
Pioneers Blvd. Ste . 5, Lincoln, NE 68506). This demand for
correction and retraction is sent pursuant to Neb. Rev. Stat. § 25-
840.01, as set forth above.

If we don't receive a copy of such letter within 21 days, Ms.
Morgan will reluctantly consider initiating further action
concerning Dr. Reinhard, which could ultimately implicate the
University of Nebraska. At a minimum, this includes advising the
Ponca Tribes of Nebraska and Oklahoma of his unredressed, hollow

176

Thorn K. Cope, Esq.
December 12, 1995
Page 4

threat of suit and concomitant attempt to intimidate and coerce her
into abandoning her constitutionally-protected right of free speech
to express her opinion about how Dr. Reinhard (and the University
of Nebraska) mistreated the remains of her Ponca ancestors--
mistreatment which a University attorney has already concluded was
"clearly illegal" under federal law.

Sincerely,

Enc

Robert M. Peregoy

cc w/enc: Ms. Judi Morgan, Director

Nebraska Indian Commission
The Honorable Fred LeRoy, Chairman

Ponca Tribe of Nebraska
Mr. Chuck Kasserbrook, Member

Board of Regents, University of Nebraska
Dr. Joan Leitzel, Interim Chancellor

University of Nebraska, Lincoln
Dr. James Moeser, Chancellor

University of Nebraska, Lincoln
Dr. Pricella Grew

Vice Chancellor for Research, UNL
Dr. Brian Foster, Dean

College of Letters and Science, UNL
Dr. Ray Hames, Chairman

Anthropology Department, UNL
Dr. Thomas P. Myers

Repatriation Director, UNL
Mr. John Wiltse, Esq.

Associate General Counsel, UNL
Dr. Steve Holen, Research Archaeologist

University of Nebraska, Lincoln
Ms. Melanie J. Whittamore-Mantzios, Esq.

Asst. Attorney General, Nebraska
Mr. Joe Dugan, Lincoln Journal-Star
Mr. John Dendy

177

STATEMENT OF KATHERINE H. STEVENSON, ASSOCIATE DIRECTOR, CULTURAL
RESOURCE STEWARDSHIP AND PARTNERSHIPS, NATIONAL PARK SERVICE,
DEPARTMENT OF THE INTERIOR, BEFORE THE COMMITTEE ON INDIAN
AFFAIRS, UNITED STATES SENATE, REGARDING THE STATUS OF
IMPLEMENTATION OF THE NATIVE AMERICAN GRAVES PROTECTION AND
REPATRIATION ACT.

December 6, 1995

Mr. Chairman, I appreciate the opportunity to appear before your
committee to discuss the status of implementation of the Native
American Graves Protection and Repatriation Act (NAGPRA) .

NAGPRA was enacted on November 16, 1990, to address the rights of
lineal descendants, Indian tribes, and Native Hawaiian
organizations to Native American human remains, funerary objects,
sacred objects, and objects of cultural patrimony with which they
are affiliated. The Secretary of the Interior is responsible for
implementation of the statute. Principal among the Secretary's
responsibilities are:

o developing regulations implementing the statute;
o administering a program of grants to assist museums, Indian
tribes, and Native Hawaiian organizations in complying with
their responsibilities under the statute; and
o creating a review committee of seven private citizens to
advise on regulations and assist in other aspects of
implementation of the statute.

In the five years since NAGPRA 's enactment, the National Park
Service (NPS) has taken a variety of steps on behalf of the
Secretary to implement the statute. The NPS has the appropriate
governmentwide mandate for working with other Federal agencies on

178

this issue as the NPS represents the Secretary in matters related
to collections management and care of archeological collections
and has staff expertise in curat ion generally. Also, NPS has
worked very closely with Indian tribes and Native Hawaiian
organizations to preserve and protect cultural resources related
to tribes throughout the country.

My predecessor, Jerry Rogers, provided information at this
committee's previous oversight hearing on May 27, 1993. I would
like to update the committee on activities since that time.

Regulations: On May 28, 1993, proposed regulations implementing
the statute were published for public review and comment in the
Federal Register. Copies of the proposed rule were sent to the
chief executive officers of all Indian tribes, Alaska Native
villages and corporations, Native Hawaiian organizations,
national Indian organizations and advocacy groups, national
scientific and museum organizations, and state and Federal agency
historic preservation officers and chief archaeologists. Eighty-
two written comments were received, representing 89 separate
organizations and individuals. These included thirteen Indian
tribes, ten Native American organizations, nine museums, seven
universities, three national scientific and museum organizations,
eleven state agencies, nineteen Federal agencies, nine other
organizations, and eight individuals. Several letters

179

represented more than one organization. Comments addressed
nearly all sections and appendices of the proposed rule.

All comments were fully considered when revising the proposed
rule in the final rulemaking. A draft of the final rule was
evaluated and revised in consultation with the review committee
at its September, 1993, meeting in Washington. Further
consultation with the review committee occurred at subsequent
meetings in Phoenix and Rapid City in February and May, 1994.
The draft final rule, with an extensive preamble evaluating all
substantive comments, was submitted for Departmental review in
September, 1994. The review of these regulations within the
Department of the Interior has been extensive and intensive. The
Bureau of Indian Affairs, Bureau of Land Management, Bureau of
Reclamation, Fish and Wildlife Service, Office of Surface Mining,
as well as several sections of the Office of the Solicitor and
the Assistant Secretaries for Indian Affairs, Land and Minerals
Management, and Water and Science took part in these discussions.
The regulations were approved by Assistant Secretary for Fish and
Wildlife and Parks, George T. Frampton, Jr., on September 20,
1995, and the final rule was published in the Federal Register on
December 4, 1995.

Grants: Funds to institute the grants program were first
requested and appropriated in FY 1994. The program was continued
in FY 1995 and is included in the Conference Report in the

180

FY 1996 budget. Since its inception, 83 NAGPRA grant awards
totalling $4.37 million have been awarded by the Secretary.
Three hundred and thirty-seven proposals were submitted over the
past two years, with a total request of nearly $30 million.
Section 10 of the statute authorizes the Secretary to make grants
to museums to assist them in conducting inventories and
identification required under the Act, and to Indian tribes,
Alaska Native villages and corporations, and Native Hawaiian
organizations to assist in the repatriation of human remains and
cultural items. Grants have been provided for educational
workshops, compiling inventories, reviewing documentation, and
coordinating tribal-museum discussions on cultural affiliation.

Review Committee: The Native American Graves Protection and
Repatriation Review Committee, initially established in April,
1992, has met eleven times. The committee was established to
monitor implementation, consult with the Secretary, advise
Congress, and facilitate the resolution of disputes. The
committee has been deeply involved in development of the
regulations as I have already indicated. The committee also has
spent considerable time in facilitating resolution of five
disputes: two have been resolved, recommendations have been made
on a third, and two are under active consideration. The review
committee has provided two reports to the Senate Committee on
Indian Affairs and its counterpart in the House, discussing more
fully its activities and making several specific recommendations.

181

Eight hundred and forty-seven museums and Federal agencies have
provided summaries of their collections to Indian tribes and
Native Hawaiian organizations. Several inventories are almost
complete, although a number of museums have applied for
extensions. While major progress has been made by Federal
agencies and museums, efforts are ongoing and completion is
anticipated in the near future, subject to available funds.

Sixty-six statutorily required Federal Register notices have
announced museum and Federal agency willingness to repatriate
2,713 human remains, 122,948 funerary objects, 212 sacred
objects, and 16 objects of cultural patrimony. Federal agencies
are actively involved in consultation \nd determinations of
custody related to excavations and inadvertent discoveries on
Federal and tribal land. Museums and Federal agencies have
shared information about their collections with culturally
affiliated Indian tribes and Native Hawaiian organizations.
Grant support has been provided to some Indian tribes, Native
Hawaiian organizations, and museums. The review committee is
actively involved in monitoring implementation, consulting with
the Secretary, advising Congress, and facilitating the resolution
of disputes.

Future Actions: The next phase of implementation will in many
ways be more difficult than the first. With documentation in
hand, Indian tribes and Native Hawaiian organizations are now

182

beginning the protracted and potentially contentious consultation
process to verify their rights to particular Native American
human remains, funerary objects, sacred objects, and objects of
cultural patrimony. The support of this Committee is needed to
guarantee the dialogue continues. I would like to take this
opportunity to bring to your attention four specific areas of
concern:

1) The grant program initiated in FY 1994 is needed now more
than ever to facilitate reviewing documentation,
establishing cultural affiliation, promoting ongoing
dialogue between Indian tribes, Native Hawaiian
organizations, Federal agencies and museums;

2) The. continued appropriations for NAGPRA implementation
within the budgets of Federal agencies, particularly the
land management agencies with the largest collections and
lands to manage; i.e., NPS, BLM, FWS, BOR, and the Corps of
Engineers, are essential if the agencies are to meet their
statutory requirements;

3) Publication of Federal Register notices on time may be
difficult given available resources. This could delay
repatriations;

183

4) The number of disputes is expected to increase, making it
more difficult to resolve conflicts between museums, Indian
tribes, and Native Hawaiian organizations; and

5) Impending publication of civil penalty regulations, needed
to ensure compliance with the statute, will require
additional effort to meet new enforcement responsibilities.

Mr. Chairman, we have worked to implement this important statute
as expeditiously as possible. We will strive to do our utmost to
fulfill our obligations under current budgetary constraints.

This concludes my prepared remarks, Mr. Chairman. I will be
pleased to answer any questions you may have.

184

United States Department of the Interior amhugI:

NATIONAL PARK SERVICE
P.O. Box 37127
in replvkeferto Washington, DC. 20013-7127

MAR 2 | 1996

W3823(2275)

Honorable John McCain

Chairman

Committee on Indian Affairs

United States Senate

Washington, DC 20510-6450

Dear Senator McCain:

I apologize for the lateness of this reply to your request for additional information from the
National Park Service and the Department of the Interior regarding implementation of the
Native American Graves Protection and Repatriation Act. We did not receive your
December 15, 1995, request until mid-January due to the extended shut-down of the
National Park Service. Many of your questions have several parts. In organizing this
response, we have divided some questions into subsections labelled by letters, e.g. (a),
(b), (c), etc.. We hope this will keep our reply clear.

1 . (a) Could you describe what criteria the Department is considering in order to grant the
time extensions? (b) How long does the Department anticipate it will take to complete
all inventories and facilitate the repatriation process? (c) Has there been any
consultation with Indian tribes in the development of extension criteria?

(a) Section 5 (c) of the Act stipulates that "the Secretary may extend such time
requirements for any such museum upon a finding of good faith effort. An
indication of good faith shall include the development of a plan to carry out the
inventory and identification process." Museums appealing to the Secretary for an
extension to the November 16, 1995, deadline for inventory completion were
required to submit:

i. A letter from the museum's governing body describing the reasons for the
institution's expected failure to meet the November 16, 1995 deadline;

ii. A description, organized by archeological site and/or geographic source, of
Native American human remains and associated funerary objects in the
museum's collection, including those on loan, which estimates the minimum
number of individuals and the minimum number of associated funerary objects
and identifies the current location of each;

iii. A listing of the name, title, and phone number of all Indian tribe, Alaska Native
village and corporation, and Native Hawaiian organization officials and traditional
religious leaders who have been consulted regarding the cultural affiliation of the
human remains and associated funerary objects (contacts may be confirmed
prior to issuance of any extension); and

185

iv. A written plan to complete the inventory by a specific date, including

identification of the steps necessary to complete the inventory; position titles of
the persons responsible for completion of each step; a schedule for
implementing provisions of the written plan; and a description of efforts, in
addition to submission of this application, to obtain the requisite funding.

(b) As of February 6, 1996, 469 inventories had been received from museums and
Federal agencies. Additional completed inventories are expected before the May 16,
1996, deadline for notification. Eighty museums have appealed for more time to
complete their inventories. These appeals are under review at this time. The
maximum extension being considered at this time is three years. All other
inventories should have been completed by November 16, 1995. However, the
repatriation process can be expected to extend indefinitely as Indian tribes and
Native Hawaiian organizations continue to review the summaries and inventories
and prepare claims. There is no statute of limitations for tribal claims.

(c) Extension criteria were discussed at Review Committee meetings -- all of which are
open, public meetings -- by members of the committee. Members of the public,
including tribal representatives, attended the meetings regularly and expressed their
concerns on a variety of matters, including these issues. The criteria require the
museum to provide evidence of consultation with culturally affiliated Indian tribes
before an extension appeal will be considered.

2. (a) How is the Department preparing for the backlog of inventories? (b) What time limit
will the Department establish for the completion of inventories?

(a) The National Park Service NAGPRA staff is currently evaluating each inventory for
completeness, preparing all notices of inventory completion for publication in the
Federal Register, and preparing a list of all culturally unidentifiable human remains
to provide to the Review Committee. At current staff levels this process is
anticipated to take two to three years. More rapid processing of inventories would
require additional resources.

(b) All inventories should have been completed by November 16, 1995. Eighty
museums have appealed for extensions to this deadline. The Department is
currently evaluating these appeals based upon evidence of the museum's good faith
efforts to date and substantial numbers of human remains and funerary objects
subject to the statute that they hold. At this time, the Department is considering a
three year maximum extension of the inventory deadline. Fourteen of the largest
natural history museums have appealed for more than a one year extension to
complete their inventories.

3. When do you anticipate that the proposed regulations to implement the civil penalty
provisions under section 10 of the Act will be published?

Draft regulations establishing due process procedures to implement section 9 of the
Act have been developed in consultation with the Review Committee and, following
formal review within the Department and the Office of Management and Budget, will

186

soon be ready for publication in the Federal Register. The Department is considering
publishing these procedures as an interim rule that would go into effect while public
comment is being considered in order to circumvent the possibility of being unable to
assess a penalty due to expiration of the statute of limitations. The draft of this section
has been pre-reviewed by all relevant offices within the Department in order to
expedite the formal review process once the decision to proceed has been made. We
hope to begin the formal review process soon and have the regulations published as an
interim rule in the near future.

(a) How will the Department of the Interior work with Indian tribes to determine the
disposition and treatment of unidentifiable human remains? (b) Are you aware of any
proposals regarding disposition of culturally unidentifiable human remains currently
under consideration?

(a) Section 8 (c)(5) of the Act requires the seven person Native American Graves
Protection and Repatriation Review Committee to recommend specific actions for
developing a process for the disposition of culturally unidentifiable Native American
human remains. In the spring of 1995, the Review Committee distributed a draft of
its recommendations for public comment to all Indian tribes and Native Hawaiian
organizations, as well as museums. Federal agencies, and national scientific and
museum organizations. The Review Committee is currently considering the 1 20
written comments it received and has indicated its desire to circulate a revised draft
in 1996.

(b) The Review Committee's draft recommendations, which are currently being
redrafted for further review, is the only document being considered at present.

(a) Could you provide an estimate on the approximate number of inventories that have
been received by the Department? (b) Could you provide an estimate on the number of
time extensions requests received from museums and Federal agencies? (c) Will the
Department notify Indian tribes of the extensions granted to specific museums or
Federal agencies?

(a) As of February 1, 1996, we have received 469 inventories from museums and
Federal agencies. Additional inventories are expected by the May 16, 1996,
notification deadline.

(b) Eighty appeals for extensions to the November 16, 1995, deadline for inventory
completion have been received from museums. The statute does not provide for
extensions for Federal agencies.

(c) A list of all extensions is being published in the Federal Register and next issue of
Common Ground [formerly Federal Archeology], the National Park Service's
quarterly publication on Federal archeology and ethnography. This publication is
received by all Indian tribes and Native Hawaiian organizations, as well as by
individual Native Americans. The publication is also received by museums. Federal
agencies, and national scientific and museum organizations.

187

6. Does the Park Service or the Review Committee have a process to monitor museums
conducting excessive, expensive, and time consuming studies under the guise of
"documenting" or "inventorying"?

Complaints regarding museum and Federal agency compliance with provisions of the
statute can be directed to the Secretary or the Review Committee. We have no
separate procedures for monitoring museum compliance.

7. Did the Park Service engage in any consultation with Indian tribes, tribal or museum
organizations over promulgation of the regulations beyond publishing the draft
regulations in the Federal Register and consultation with the Review Committee?

Three drafts of what eventually was published as the proposed regulations were
distributed to Indian tribes, museums, Federal agencies, and national scientific and
museum organizations. Comments on these drafts were considered in preparing the
proposed regulations.

8. What level of priority has the Park Service placed on requesting funds for grants?

The National Park Service has placed a high priority on maintaining the grants program
in the face of necessary budget reductions.

The following questions were submitted on behalf of the Committee's Vice Chairman,
Senator Inouye. To distinguish them from the preceding questions, we have labeled them
using the Senator's name as a prefix, e.g. "Inouye 1," Inouye 2," etc.

Inouye 1. Could you please provide the Committee with a list of grantees for FY 1994 and
FY 1995?

A list of all grantees is enclosed.

Inouye 2. (a) Couldn't section 10.10 (b)(2) of the regulations delay repatriation or limit the
authority of a museum or Federal agency to repatriate? (b) What would happen if a
museum simply fails to comply with the inventory requirement? (c) Is repatriation
prohibited if a museum fails to complete its inventory? (d) What is the longest extension
for inventory completion that will be given? (e) Will multiple extensions be permitted?

(a) The thirty day waiting period following publication of the notice of inventory
completion in the Federal Register is intended to satisfy due process considerations
by alerting any possible additional claimant of the impending repatriation. This
requirement has been waived for two repatriations that were pending on November
16, 1990, consistent with section 1 1 (2) of the Act.

(b) Inventories are intended to provide all lineal descendants, Indian tribes, and Native
Hawaiian organizations with the information needed to claim human remains and
associated funerary objects. Any museum that does not complete the inventory of
human remains and associated funerary objects in its collection has failed to comply

188

with provisions of the Act and could be liable for civil penalties under section 9 of
the Act.

(c) The only exemption to completing an inventory prior to repatriation would be if the
repatriation was pending on November 16. 1990 consistent with section 1 1 (2) of
the Act.

(d) Three years.

(e) Multiple extensions are not anticipated at this time.

Inouye 2. [number repeated in original] (a) Why is notice of the entire inventory completion
needed to satisfy due process? (b) Wouldn't due process be satisfied by the notice
requirement pertaining to specific repatriations or even by a letter from the museum or
Federal agency to potential competing claimants?

(a) The National Park Service has encouraged museums and Federal agencies to
expedite completion of inventories for portions of their collections which have
elicited the interest of Indian tribes and Native Hawaiian organizations. Completion
of an entire inventory is not required in order to proceed with a notice of inventory
completion or a notice of intent to repatriate. All of the 65 notices thus far
published in the Federal Register are for portions of museum or Federal aqencv
collections.

(b) All of the 65 notices that have thus far been published in the Federal Register relate
to specific repatriations and not to a museum or Federal agency's entire collection
Notification by letter might satisfy due process considerations but is not what the
Act requires.

Inouye 3. (a) What happens if a tribe that clearly has a claim with regard to remains or
objects discovered on Federal land states that it does not want any studies or analyses of
the remains and the Federal agency disagrees? (b) Are invasive activities permitted over
the objection of a tribe with the clear right to custody of the items?

(a) Federal agencies are precluded from any activity in the vicinity of inadvertently
discovered human remains or cultural items, beyond protecting the items
discovered, for a period of thirty days while consultation with affiliated Indian tribes
or Native Hawaiian organizations proceed. The Federal agency is responsible for
determining necessary investigations and recording if human remains or cultural
items must be removed. Any such excavation must be conducted following the
requirements of the Archaeological Resources Protection Act (ARPA) as stated in
section 3 (c) of the statute. Meeting the requirements of ARPA involves appropriate
description and analysis of any excavated human remains and cultural items. We
have encouraged Federal agencies to develop in consultation with affiliated Indian
tribes mutually acceptable methods for recording and analysis. However, the
Federal agencies have the responsibility for determining appropriate recording
measures within the requirements of ARPA.

189

(b) No studies may be conducted that delay repatriation, unless the study has been
determined to be of major benefit to the United States. The Federal agency or
museum is responsible for determining necessary investigations and recording.

Inouye 4. Are there any limitations on the treatment of human remains and cultural items
during the period before an Indian tribe or Native Hawaiian organization can actually
assume custody of unearthed materials?

The statute cannot be used to authorize additional scientific studies. However, the
statute does not restrict such treatment as long as repatriation is not delayed.

Inouye 5. What happens to remains and/or cultural items if one tribe clearly has a claim
based upon the site being located on its aboriginal land, but it is not known whether
another tribe may have a claim based upon affiliation?

For new excavations or inadvertent discoveries, Federal agency officials are required to
consult with any lineal descendant, tribal land owner, culturally affiliated Indian tribe or
Native Hawaiian organization, Indian tribe that aboriginally occupied the site area, and
Indian tribe with some "other cultural relationship" prior to determining the disposition
of discovered or excavated human remains or cultural items. The Federal agency is
required to repatriate upon the request of an Indian tribe from whose aboriginal lands
the human remains or cultural items came if no lineal descendant, tribal land owner, or
culturally affiliated Indian tribe or Native Hawaiian organization is identified.

Inouye 6. (a) What is the meaning given to "sufficient legal interest?" (b) Could a museum
possess and display items on a long-term basis, yet be said not to possess the items for
purposes of NAGPRA?

(a) "Sufficient legal interest" means adequate authority to exercise restraining or
directing control over something.

(b) Yes, museums do not generally have sufficient legal interest in items on loan from
private individuals for the statute to apply.

Inouye 7. Will the list of Indian tribes covered by the Act include all tribes that receive
services from any Federal agency, or will it be limited to tribes that are recognized by the
Department of the Interior?

The definition of Indian tribe used in the statute was explicitly drawn from the Indian
Self Determination Act. The list of Indian tribes with standing to make claims under
NAGPRA includes Indian tribes listed in the Bureau of Indian Affairs list in the Federal
Register, plus Alaska Native village and regional corporations eligible for self
determination contracts.

Inouye 8. Do you have any recommendations or suggestions to address your concerns
regarding the ongoing implementation of the Act?

23-074 96-7

190

The continuing implementation of the statute remains challenging. With inventory
documentation in hand, Indian tribes and Native Hawaiian organizations are beginning
the consultation process to verify their rights to particular human remains, funerary
objects, sacred objects, and objects of cultural patrimony. We have identified four
specific areas of concern:

a. Publication of Federal Register notices to fulfill Constitutional, statutory, and
regulatory due process requirements may delay repatriations. The Secretary is
required to publish notices in the Federal Register prior to a museum or Federal
agency repatriating human remains, funerary objects, sacred objects, or objects of
cultural patrimony to culturally affiliated Indian tribes or Native Hawaiian
organizations. The publication cost of one notice averages $264. Sixty-five notices
have been published since 1992. As noted above, nearly 500 inventories have been
submitted at present. If each inventory requires only one Federal Register notice,
and it is our experience that large inventories may require several, the cost of
Federal Register notice publication this year will be over $100,000.

b. The number of disputes is expected to increase, further complicating our ability to
schedule review committee meetings and thus prolonging conflicts between
museums, Indian tribes, and Native Hawaiian organizations. The review committee
has thus far considered four disputes. The number of disputes is expected to rise
now that most museums and Federal agencies have provided Indian tribes with
information about their collections.

c. Impending publication of civil penalty regulations, needed to ensure compliance
with the statute, will result in new enforcement responsibilities. Section 9 of the
statute authorized the Secretary to assess civil penalties against any museum that
fails to comply with the Act. Regulations, required to ensure due process, have
been developed in consultation with the review committee. The Department is
considering issuing these procedures as an interim rule that would take effect
immediately to guard against museums avoiding an assessment because the statute
of limitations expired. The Office of the Solicitor has estimated that one civil
penalty case - from initial investigation to final appeal - could cost the Department
$100,000 in staff time and resources.

d. The grant program initiated in FY 1994 is needed to facilitate ongoing dialogue
between Indian tribes, Native Hawaiian organizations, and museums. The
Congressional Budget Office estimated in 1 990 that implementation of the Act
would cost $50 million over five years. Since its inception, 83 NAGPRA grant
awards totalling $4.37 million have been awarded by the Secretary. Three hundred
and thirty-seven proposals were submitted over the past two years with a total
request of nearly $30 million.

e. Two technical amendments to the statute should be considered:

1 . Amend section 8 (c)(5) to make the review committee responsible for
"compiling an inventory of culturally unidentifiable human remains and
associated funerary objects that are in the possession or control of each Federal

191

agency and museum and recommending specific actions for developing a
process for their disposition.

2. Amend section 9 as follows:

<e) Enforcement. Penalties collected under this section will supplement the
appropriation bearing the cost of related enforcement activities. The
Secretary may:

HI pay to any person who furnishes information which leads to the finding
of a civil penalty (except officers or employees of the United States or
any State or local government who furnishes information or renders
service in the performance of official duties) an amount not to exceed
one half of such penalty or $ 1000, whichever is less; and

(2) reduce a penalty if the violator agrees to pay appropriate restitution to
the aggrieved party or parties or may pay to aggrieved parties as
restitution an amount not to exceed the amount of the penalty.

The following questions deal specifically with implications of Na Iwi v. Dalton et al. To
distinguish them from the preceding questions, we have labeled them using the site
location as a prefix, e.g. "Mokapu 1," Mokapu 2," etc.

Mokapu 1 . (a) Should information derived from the NAGPRA inventory process be subject
to public disclosure? (b) Should Congress amend NAGPRA to provide protection from
public disclosure of information derived from NAGPRA inventories? (c) Should protection
of information from NAGPRA inventories from public disclosure be limited in scope? (d)
Should NAGPRA inventory information be exempted from the application of the Freedom
of Information Act?

(a) An inventory is an item-by-item description of Native American human remains and
associated funerary objects compiled by museums and Federal agencies to
determine the cultural affiliation of those items and document that museums and
Federal agencies have adequately exercised their responsibilities in complying with
the law. These documents serve as records of the human remains and associated
funerary objects currently under the control of Federal agencies and museums and
of the human remains and associated funerary objects repatriated to Indian tribes
and Native Hawaiian organizations. Public access to such information is vital to
monitor the progress on repatriation and subsequent treatment of repatriated human
remains and cultural items.

(b) No.

(d) The purpose of the Freedom of Information Act is to guarantee an informed
citizenry so vital to the functioning of a democratic society. The Supreme Court has

192

emphasized that "[olfficial information that sheds light on an agency's performance
of its statutory duties falls squarely within that statutory purpose." Amending the
Freedom of Information Act to exempt inventory information would largely preclude
public oversight of Federal agencies' compliance with the NAGPRA, while having no
effect on information compiled by non-Federal museums. We do not recommend
NAGPRA inventory information be exempted from the Freedom of Information Act.

Mokapu 2. (a) Does NAGPRA sufficiently address the issue of necessary scientific studies
which may be initiated during the course of compiling an inventory? (b) Do you believe
that definitions of "inventory," "scientific study," or "scientific information" may be
warranted? (c) Under what circumstances would further scientific studies be warranted?

(a) Yes.

(b) The statutory definition of "inventory," which is repeated in the final regulations, is
sufficient. The term "scientific study" is used only in section 7 (b) of the statute
and 43 CFR 10.10 (c)(1) which provides an exemption to expedient repatriation in
circumstances where human remains and cultural items are indispensable to the
completion of a specific scientific study, the outcome of which is of major benefit
to the United States. The exact nature of "scientific" study seems less important in
this definition than what constitutes a "major benefit to the United States." Thus
far, no museum or Federal agency has declined to repatriate on these groups. The
term "scientific information" is used in neither the statute nor the regulations. A
definition is not needed.

Mokapu 3. Should Congress amend the Act to provide authority for legal actions to be
brought by who may qualify to serve as guardians?

The statute established a new and complex set of relationships between museums.
Federal agencies, and Indian tribes and Native Hawaiian organizations. Amending the
statute to add a new category of "guardians" will unnecessarily complicate and delay
the repatriation process.

We welcome your continued interest in implementation of this important statute. Please
contact me if you have any additional questions.

Sincerely,

Katharine H. Stevenson
Associate Director, Cultural Resource
Stewardship and Partnerships

Enclosure

193

NEWS RELEASE

u.s. department of the interior

national park service

For Immediate Release | Anita Clevenger 202/208-6843

C. Timothy McKeown 202-/343-4101
$2,140,000 AWARDED IN NAGPRA GRANTS
Secretary of the Interior Bruce Babbitt today announced
awards totalling $2,140,000 for 41 projects to be conducted by
museums, Indian tribes, and Alaska Native villages and
corporations to assist in implementation of the Native American
Graves Protection and Repatriation Act (NAGPRA) . —
f . Secretary Babbitt praised the 41 projects as "exemplifying

mandated hv ft^Tl^^™* 11 museums and Indian tribes that is
S?^ by ^ e A ^ : . Se =retary Babbitt said funds have been
included in the administration's budget request to continue
awarding NAGPRA grants in Fiscal Year 1995 continue

NAGPRA, enacted in 1990, requires museums and Federal
^H n ^ S f to l ^^ntory and identify Native American human remains
and cultural items in their collections and to consult with
culturally affiliated Indian tribes, Alaska Native villages and
corporations, and Native Hawaiian organizations regarding
repatriation by November 16, 1995. Section 10 of the Act
authorizes the Secretary of the Interior to award grants to
assist museums, Indian tribes, Alaska Native villages and
corporations, and Native Hawaiian organizations to implement
provisions of the Act. p nt

f rnm Tn! National Park Service (NPS) received 220 applications
fnrt !»=?■ Indlan . tribes < Alaska Native villages and corporations,
and Native Hawaiian organizations, and 109 museums for requests
totaling more than $23 million. Proposals were reviewed by NPS
staff and a panel of Native Americans and museum professionals
Grant recipients are undertaking a broad range of projects to
implement NAGPRA, including conducting workshops and training
coordinating inter-tribal and inter-museum discussions, and
hiring repatriation coordinators to prepare and review
documentation.

Specific awards and contacts are listed on the reverse side
of this page Additional information regarding these awards can
ae obtained from Dr. C. Timothy McKeown, NAGPRA Program Leader
Archeological Assistance Division, National Park Service P O '
Box 37127, Washington DC.

(over)

P.O. Box 37127

Washington, DC 20013-7127

194

FISCAL YEAR 1994 GRANTS TO ASSIST IMPLEMENTATION OF THE NATIVE
AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)

LIST OF AWARDS AND CONTACTS

Alaska State Museums, Juneau AK [Bruce Kato:
(907) 465-2901] $29,700

Arkansas Archeological Survey, Fayetteville AR
[Thomas J. Green: (501) 575-3556] $74,500

Bering Straits Foundation, Nome AK

[Vernon Olson: (907) 443-5252] $73,400

Burke Memorial Museum, Seattle WA

[James D. Nason: (206) 543-9680] $74,700

Caddo Indian Tribe of Oklahoma, Binger OK

[Elmo Clark: (405) 656-2344] $75,000

Campo Band of Mission Indians, Campo CA

[Ralph Goff: (619) 478-9046] $67,800

Catalina Island Museum Society, Avalon CA
[Patricia Anne Moore: (310) 510-2414] $13,900

Central Council of Tlingit and Haida Indian —

Tribes of Alaska, Juneau AK

[Cheryl Eldemar: (907) 463-7186] $75,000

Cheney Cowles Museum, Spokane WA

[Lynn Pankonin: (509) 456-3932] $57,600

Cheyenne River Sioux Tribe, Eagle Butte SD
[James D. Picotte: (605) 964-2543] $73,200

Children's Museum, Boston MA

[Joan Lester: (617) 426-6500 x261] $10,300

Cincinnati Museum of Art, Cincinnati OH

[Bill Mercer: (513) 721-5204] $15,100

Columbus Museum, Columbus GA

[Frank T. Schnell: (706) 649-0713] $46,300

Dartmouth College, Hanover NH

[Kellen Haak: (603) 646-3109] $10,400

Denver Art Museum, Denver CO

[Nancy Blomberg: (303) 839-4806] $62,500

Hualapai Tribe, Peach Springs AZ

[Loretta Jackson: (602) 769-2254] $70,900

Jicarilla Apache Tribe, Dulce NM

[Calvin Veneno: (505) 759-3242] $75,000

Keepers of the Treasure -Alaska, Anchorage AK
[Jana Harcharek: (907) 852-0320] $37,000

Kenaitze Indian Tribe, I.R.A., Kenai AK

[Rita Smagge: (907) 283-3633] $75,000

Leech Lake Band of Chippewa, Cass Lake MN

[Rose Kluth: (218) 335-8095] $57,600

Los Angeles County Museum of Natural History,

Los Angeles CA

[Margaret Hardin: (213) 744-3381] $38,000

Maine State Museum, Augusta ME

[John R. Phillips: (207) 287-2301] $71,700

Menominee Indian Tribe of Wisconsin, Keshena WI
[Betty Jo Wozniak: (715) 799-5154] $54,800

Mississippi State University, MS

195

[John W. O'Hear: (601) 325-3826] $42,000

Museum of New Mexico Foundation, Santa Fe NM

[Bruce Bernstein: (505) 827-6344] $74,900

Museum of Texas Tech University, Lubbock TX

[Mei Wan Campbell: (806) 742-2442] $20,900

New York State Museum, Albany NY

[Lynne P. Sullivan: (518) 474-5813] $82,300

Oklahoma Museum of Natural History, Norman OK

[Julie A. Droke: (405) 325-4712] ' $75,000

Panhandle-Plains Historical Museum, Canyon TX

[Karen Anderson: (806) 656-2234] $49,700

Peabody Museum of Archaeology and Ethnology,
Cambridge MA

[Barbara Isaac: (617) 495-2254] $46,000

Peabody Museum of Archaeology, Andover MA

[James W. Bradley: (508) 749-4490] $116,900

Skokomish Indian Tribe, Shelton WA

[Edward H. Binder: (206) 426-4232] $48,800

Southern Ute Indian Tribe, Ignacio CO

[Helen Hoskins: (303) 563-9583] $35,400

Tuolumne Band of Me-Wuk, Tuolumne CA

[Reba Fuller: (209) -928-3475] $73,200

University of Alaska Museum, Fairbanks AK

[Aldona Jonaitis: (907) 474-7505] $29,400

University of Oregon Museum of Natural History,
Eugene OR

[Don Dumond: (503) 346-5101] $75,000

Washoe Tribe of Nevada and California,

Gardnerville NV [Jody Steele: (702) 265-4191] $56,100
Zuni Pueblo, Zuni NM

[Roger Anyon: (505) 782-5558] $75,000

TOTAL

$2,140, 000

July 14, 1994

196

NEWSmEASE

u.s.department of the interior

national park service

For Release: July 18, 1995 David Barna 202/208-6843

Anita Clevenger 202/208-7394

INTERIOR SECRETARY AWARDS $2.2 MILLION IN NAGPRA GRANTS

Secretary of the Interior Bruce Babbitt today announced awards totaling $2,233,200
to assist museums, Indian tribes, Native Hawaiian organizations, and Alaska Native villages
and corporations with implementation of the Native American Graves Protection and
Repatriation Act (NAGPRA). The awards were divided among 42 projects. —

NAGPRA, enacted in 1990, requires museums and federal agencies to inventory and
identify Native American human remains and cultural items in their collections and to consult
with culturally affiliated Indian tribes, Alaska Native villages and corporations, and Native
Hawaiian organizations regarding repatriation by November 16. 1995 .

The National Park Service (NPS) received 117 applications from 60 Indian tribes,
Alaska Native villages and corporations, and Native Hawaiian organizations, and 52
museums for requests totaling more than $6.2 million. Proposals were reviewed by NPS
staff and a panel of Native Americans and museum professionals. The broad range of
projects being undertaken by grant recipients include: a repatriation award to the Pawnee
Tribe of Oklahoma to rebury over 400 ancestral remains which were previously located in
three different museums, as well as workshops and training, the coordination of inter-tribal
and inter-museum discussions, and hiring repatriation coordinators to prepare and review
documentation.

In announcing the awards. Secretary Babbitt praised the 42 projects as "continuing the
dialogue between museums and Indian tribes that began five years ago with the passage of
the Act." Secretary Babbitt went on to announce that funds have been included in the
administration's budget request to continue awarding NAGPRA grants in Fiscal Year 1996.

Specific awards and contacts are listed on the reverse side of this page. Additional
information regarding these awards can be obtained from Dr. C. Timothy McKeown,
NAGPRA Program Leader, Archeological Assistance Division, National Park Service, P.O.
Box 37127, Washington, D.C. 20013-7127

P.O. Box 37127

Washinoton. DC 20013-7127

197

FISCAL YEAR 1995 GRANTS TO ASSIST IMPLEMENTATION OF THE NATIVE
AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)

LIST OF AWARDS AND CONTACTS

Bering Straits Foundation, Nome, AK [Vernon Olson: (907) 443-5252] $74,960
Central Council of Tlingit and Haida Indian Tribes of Alaska,

Juneau, AK [Cheryl Eldemar: (907) 586-1432] $51,675

Cheyenne River Sioux Tribe of South Dakota, Eagle Butte, SD [James Picotte: (605) 964-2542] $63,430

Children's Museum, Boston, MA [Joan Lester: (617) 426-6400 x261] $18,040

Coquille Indian Tribe, Coos Bay, OR [Troy Anderson: (503) 756-0662] $29,750

Denver Art Museum, Denver, CO [Nancy Blomberg: (303) 640-7572] $57,270

Detroit Institute of Arts, Detroit, MI [Dr. David Penney: (313) 833-1432] $14,580

Eastern Shawnee Tribe of Oklahoma, Seneca, MO [Leroy Ellis: (918) 666-2435] $64,080

Field Museum of Natural History, Chicago, IL (2 projects) [Dr. Jonathan Haas: (312) 922-9410 x641] $106,785

Fort Lewis College, Durango, CO [Dr. Philip Duke: (303) 247-7346] $54,460

Gila River Indian Community, Sacaton, AZ [Dr. John Ravesloot: (602) 562-3301] $53,160

Haffenreffer Museum of Anthropology, Brown University, Bristol, RI [Thierry Gentis (401) 253-8388] $28,450

Hannahville Indian Community, Wilson, MI [Patricia Peterman: (906) 466-5561] $67,050

Illinois State Museum, Springfield, IL [Dr. Robert Warren: (217) 524-7903] $82,105

Jamestown S'Klallam Tribe, Sequim, WA [Elizabeth Mueller: (360) 683-1109] $74,005

Kaibab Band of Paiute Indians, Fredonia, AZ (Angelita Bullerts: (602) 643-7214] $73,325

Kaw Nation of Oklahoma, Kaw City, OK [Steve Pensoneau: (405) 269-2552] $73,285

Kenaitze Indian Tribe, IRA, Kenai, AK [Rita Smagge: (907) 283-3633] $73,835

Mille Lacs Band of Chippewa Indians, Onamia, MN [Brenda Boyd: (612) 532-4181] $71,455

Mohegan Tribe, Uncasville, CT [Melissa Fawcett: (203) 848-2121] $64,455

Muscogee (Creek) Nation, Okmulgee, OK [Alan Cook: (918) 756-8700] $70,055

Museum of Texas Tech University, Lubbock, TX [Mei Wan Campbell: (806) 742-2442] $41,255

Nevada State Museum, Carson City, NV [Amy Dansie: (702) 687^812] $26,305

Office of Hawaiian Affairs, Honolulu, HI [Linda Delaney: (808) 586-3777] $45,160

Oneida Tribe of Indians of Wisconsin, Oneida, WI [Susan Daniels: (414) 869-2768] $47,350

Pawnee Tribe of Oklahoma, Pawnee, OK [Helen Norris: (918) 762-3649] $7,500

Peabody Essex Museum, Salem, MA [John Grimes: (508) 745-1876] $18,930
Peabody Museum of Archaeology and Ethnology,

Harvard University, Cambridge. MA [Dr. David Pilbeam: (617) 495-2254] $74,935

Quartz Valley Indian Reservation, Fort Jones, CA [Cora Thorn: (916) 468-5409] $57,490

Research Foundation of SUNY-Binghamton, NY [Dr. Nina Versaggi: (607) 777-4786] $74,915

Rome Historical Society, Rome, NY [Barbara Schafer: (315) 336-5870] $35,170

Standing Rock Sioux Tribe, Fort Yates, ND [LaDonna Brave Bull Allard: (701) 854-2120] $53,500

Tanadgusix Corporation, Anchorage, AK [Ron Philemonoff: (907) 278-2312] $71,070

University of Alabama, Moundville, AL [Eugene Futato: (205) 371-2266] $91,570

University of Alaska Museum, Fairbanks, AK [Gary Selinger: (907) 474-7505] $22,005

University of Nevada, Las Vegas, NV [Vicki Cassman: (702) 895-3590] $26,305

University of North Carolina at Chapel Hill, NC [Dr. Vincas Steponaitis: (919) 962-6574] $72,805
University of Pennsylvania Museum of

Archaeology and Anthropology, Philadelphia, PA [Dr. Jeremy Sabloff: (215) 898-4000] $8,190

White Mountain Apache Tribe, Whiteriver, AZ [Ramon Riley: (602) 338-4625] $55,590

Yakutat Tlingit Tribe, Yakutat. AK [Frances Lekanof: (907) 784-3238] $64,390

Zuni Indian Tribe, Zuni, NM [Roger Anyon: (505) 782-4814] $72,555

TOTAL $2,233,200

198

TESTIMONY

BY
THE CHAIRMAN OF THE

STANDING ROCK SIOUX
TRIBE

JESSE TAKEN ALIVE
December 6, 1995

199

Good Morning. My name is Jesse Taken Alive, and I am Chairman of the Tribal Business
Council of the Standing Rock Sioux Tribe. I am here today on behalf of the North Dakota
Intertribal Reinterment Committee, which represents all of our state's tribes, the Turtle Mountain
Band of Chipppewa, the Devils Lake Sioux Tribe and the Three Affiliated Tribes. 1 would like
to extend my appreciation from our tribal governments to Chairman McCain and the Senate
Committee on Indian Affairs for holding this important hearing today, and I would also like to
deliver a special "thank you" to our North Dakota delegation, Senator Dorgan and Senator
Conrad, for your unflagging support of our tribes in this critically important issue.

Chairman McCain and Members of the Committee, if ever there were a time to speak plainly,
that time is now. We therefore wish to state that we have encountered serious problems in our
efforts to make the Native American Graves Protection and Repatriation Act do what Congress
intended it to do: bring home our relatives, their personal burial belongings, and our items of
sacred and cultural patrimony. We are not satisfied with the limited level of input and
representation given to tribes throughout the regulatory process. For nearly two years, our
Committee has met with other tribes across the nation and we have discussed with them many of
the serious problems we bring to your attention today. Through our Intertribal Committee, our
tribes have been extremely vocal in our opposition to the restricted access to the proposed final
regulations, and today we ask you a simple question: Why? Why are we not allowed the basic
right to see for ourselves what has been incorporated in proposed regulations which once were
only 15 pages long, but are now over 140 pages? What is there to hide, if indeed something is
being hidden from us? It may be that there will be no substantial problems with the proposed
final regulations, and that will be a fine thing. But we can find no justifiable reason for the

200

arbitrary, administrative decision to keep these regulations from the eyes of the very people the
law was passed to protect. Indeed, had we been allowed to review the proposed final regulations
1 8 months ago when we made our first request to Secretary Babbitt, we would have final
regulations before us today.

Serious problems exist within the process of promulgating regulations, beginning with the failure
to seat the members of the NAGPRA Review Committee in time to meet the statutory deadline.
Before this mandate was met, moreover, three drafts of regulatory language were compiled by an
Interagency Working Group, consisting only of federal employees, with no input from Native
people or tribal officials. When appointments were finally made, the new members of the
NAGPRA Review Committee began doing their job of promulgating regulations with the third
draft of regulatory language. It is easy to see how the "tone" of the draft regulations was already
set before Native people had any involvement in the process.

NAGPRA, if nothing else, is a series of compromises between Native nations and the science
and museum industries, but it was also created as a mechanism to initiate sorely-needed dialogue
between Indian Country and these industries. If our participation in the dialogue is limited to
living with final regulations which have been primarily shaped by federally-employed members
of these communities, then nothing will have changed, and NAGPRA's original intent of
creating bridges will have failed. Also, Dr. McManamon of the Park Service has told us that all
of our concerns have been "resolved" in the Preamble of the proposed final regulations, yet we
know that seldom is the Preamble consulted when interpreting the law, moreover, the Preamble
is nsii a legal document, and would be of no use to us in a litigati ve situation. Of ftin<lam6P tal

201

importance to us is the need to determine whether or not the proposed final r egulations reflect the
letter, the i ntent and the spirit of the law. Senators, what we are asking for is not unreasonable,
and we feel certain that if it were Native people who were passing laws and writing regulatory
language so that you could repatriate your relatives' bodies and sacred things from us and our
museums, you would feel the same way.

Members of the Committee, we are compelled to refer to a directive given by President William
Clinton over two years ago. In his Executive Proclamation on Indian Affairs President Clinton
stated, "The United States is bound by a special trust relationship, requiring the Congress, the
President, and all entities of the federal government to assure that 'the good faith shall always be
observed towards the Indians', as provided in the Northwest Ordinance of 1781 . . legal
documents shall be interpreted liberally in favor of the tribes and as the tribes would have
understood them." In our view, limits placed upon tribal participation in development of
regulatory language for this precedental law, such as the Park Service's refusal to allow tribes
another review and comment period with the proposed final regulations, ignores such "good
faith" mandates and makes a mockery of present and future efforts to normalize tribal
relationships with federal agencies, museums and the science community.

One of the most serious issues we raise today relates to language that was added to the statutory
definition of tribal lands, and which was also extended to human remains and associated funerary
objects. The statute is very clear in its definition of tribal lands, when it states that "tribal land"
means (a) all lands within the exterior boundaries of an Indian reservation, and (b) all dependent
Indian communities. The Act does not raise the issue of a 5th Amendment Taking in the context

202

of tribal lands, human remains or associated funerary objects, yet an interpretation has been made
which does not comply with the law or the President's directive, and we repeat: "(Lkgal
documents shall be interpreted lib erally in favor of the tribes and as the tribes would have
understood them. " In the Act, 5th Amendment language appears only in the definition of "right
of possession", referrin g only to unassociated funerary objects, sacred objects, and objects of
cultural patrimony. There is no justification for extending a 5th Amendment Taking to human
remains, associated funerary objects and tribal lands, which, we understand from Dr.
McManamon, occurs in the proposed final regulations. Attorneys Jack Trope and Walter Echo-
Hawk, two authors of the Act, were concerned about this development as well, and submitted
testimony which we quote here: "The control and possession definitions (Sec. 10.2 (e)(5) and (6)
are simply inappropriate. To link possession with a cognizable legal interest of the sort described
could create a rather large loophole by which significant numbers of items possessed and
displayed by museums on a long-term basis could not be said to be 'possessed' by them within
the meaning of the term in the regulations. The definitions essentially change the statutory
standard from 'possess or control' to 'have a legal interest in'. It is questionable under the
common law whether museums (or private landowners) 'have a legal interest in' human remains
sufficient to do anything with them. The terms 'possession and control' should be given their
ordinary and customary meaning in the regulations. The takings exception recognized in 25
U.S.C. 3001 (13) is the protective device for insuring that the temporary possession of the items
bv museums does not result in an illegal transfer . The 'possession', and to a lesser extent,
'control' definitions cannot be used to achieve this purpose and would contravene the statutory
scheme."

203

Senators, in light of this reinterpretation of the Act, we refer you once again to the President's
Proclamation, and we quote,

"The United States shall forever respect and protect the inherent sovereign authority that the
American Indian and Alaska Native tribal governments have exercised since time immemorial."

"The United States shall forever continue to respect and protect the government-to-
government relationship with American Indians and Alaskan Native tribes, a relationship
principle that historically has been a cornerstone of this Nation's official Indian policy."

And Senators, with respect to the reinterpretation of the Act's definition of tribal lands, we ask
that you pay special attention to the last sentence in this quote:

"The United States shall support and assist American Indian and Alaska Native tribes in
exercising broad sovereign tribal authority over all places, persons, property, and even within
their territorial jurisdiction, and shall preserve and protect the taxation authority of tribes."

If a 5th Amendment Taking is extended to the definition of tribal lands, it will effectively deny
tribes their right to exercise "broad sovereign tribal authority" over lands within their exterior
boundaries that cradle the unmarked burials and burial mounds of our ancestors. If this is
allowed to go final, we will once again be forced to stand helplessly by when someone wants to
take something from us, but this time we will not be watching our lands or resources disappear,
we will be watching our loved ones, our ancestors, and their self-evident human right to rest in

204

peace, disappear from our own homelands.

Gentlemen of the Committee, time prevents us from discussing in detail the many other problems
and concerns we find with the proposed regulations and the method in which they have been
drafted, however, we provide here a partial list of the other issues, and will submit more detailed
written testimony regarding these problems in the next few days. We respectfully ask your
attention in the following matters:

• The definition of "Indian tribes" is problematic since it will exclude those indigenous
nations which are npt federally recognized but still maintain a responsibility toward their
ancestors and their items of sacred and cultural patrimony.

• While tribes are being required to divulge sacred and thus secret information regarding
their items of sacred and cultural patrimony, federal agencies and museums are not
required to protect the confidentiality of this information.

• Museums are determining what is "sacred". We submit that the museum and science
industries have no expertise or even the necessary knowledge to make this determination,
which can only correctly be made by tribal spiritual leaders.

• Federal agencies involved in the 1 940's Missouri River Basin Survey archeological
project have "given" remains and burial belongings which were excavated from federal
lands to the Smithsonian Institution in what we fear is an attempt to prevent their
repatriation before extensive study has been conducted on them, since NAGPRA clearly
states that "the Act shall not be construed to be an authorization for the initiation of new
scientific studies..." We have recendy learned where, through a Memorandum of

205

Understanding, the Bureau of Reclamation "gave" remains excavated from their lands to
the Smithsonian Institution, and did not comply with NAGPRA's mandate to complete an
inventory of these human remains and funerary objects.
Assistant Secretary Ada Deer refused to sign off on a majority of the proposed
regulations until another publication and comment period are held. She did, however,
sign off on those sections of the regulations needed to implement the summaries and
inventories sections, which then trigger the Civil Penalties section. This "piecemeal"
attempt at finalizing regulations did not include the Civil Penalties section, which from
reading the previous complaint, is sorely needed. Why is this? Also, the National Park
Service is required to fulfill NAGPRA's mandates, so why have they been made the
regulatory authority for compliance? Who will regulate this agency if they are out of
compliance?

Another section of proposed regulations which would have been triggered under the
summaries and inventories section mysteriously disappeared after our tribes objected to
language which we felt failed to protect our rights. This was an entire section which
allowed tribes and federal agencies to determine together the treatment of unmarked
burials found on federal lands. Agreements of this nature are significant empowerment
tools for tribes and they should be encouraged, not repressed.
Please investigate whether certain museums like the Chicago Field Museum still
maintain internal polices which will prevent the repatriation of human remains of great
antiquity.

Statutory language is silent regarding the repatriation of human remains incorporated into
other items. However, once again, the law has not been interpreted liberally in favor of

206

tribes because the regulations prevent the repatriation of human remains incorporated into
other items, such as scalps on war shirts.
• Various meetings of the NAGPRA Review Committe have raised the issue of scientific

study of human remains to new and more frightening levels. For example. Dr. Phillip
Walker of the Review Committee and Dr. Douglas Owsley of the Smithsonian Institution
have held protracted discussions calling for DNA analysis of Native remains, and other
tests that result in destruction of the remains themselves.

Chairman McCain and members of the Committee, we close with a proposal for a solution to the
problems we have raised with you today. After nearly two years of discussions with other tribes,
and careful consideration of the problems, we conclude that a very simple resolution is at our
fingertips. We propose that this Committee direct the NAGPRA Review Committee to consult
with regional coalitions of tribal NAGPRA representatives to re-work the proposed regulations,
send a copy of their final draft to all tribal governments for their review and comment, thus
providing balance to a legal document that will finally represent the interests of our indigenous
nations. These regional coalitions can be helpful in resolving other innate problems with the Act,
such as reaching consensus on the treatment and disposition of culturali} unidentifiable human
remains.

Honored members of the Committee, we have today witnessed another step toward improving
the government-to-govemment relations between our Nations and the United States. By holding
today's hearing, you have given us something we have struggled for for nearly two years: today
we have been heard. We respectfully request your immediate attention and action on the critical
matters we have raised today, and we are looking forward to your response. We thank you for

207

what you have done to make this historic and precedental law do what it was intended to do:
open the door to the Spirit World, one final time, for our loved ones, and begin the healing
process by returning the sacred things we need to revitalize our Nations.

208

Comments To the Senate Committee
on Indian Affairs

Regarding : Supplemental Questions to

Oversight Hearing on PX. 101-601

Submitted By : Jesse Taken Alive, Chairman
Standing Rock Sioux Tribe

To : Senator John McCain , Chairman
Senate Committee on Indian Affairs
Room S38 , Senate Hart Office Building
Washington , D.C. 20510

209

W.lhur rVxl Tomahawk

January 25, 1996

Link- Eagle Pi>
1 ... II - Harrison

AT LAROE
Charles W Murphy
Joe Kevpseaeje
Have Archamhaulr
Terry Yellow Far
Re-ea < '.am
Sharon Two Bears

Senator John McCain, Chairman
Senate Committee on Indian Affairs
Room 838, Senate Hart Office Building
Washington, DC 20510

Honorable Senator McCain:

We hope this letter finds you in good health and spirits and enjoying life.
On behalf of all North Dakota tribes, we want to thank you for your letter
of December 15, 1995, in which you invited us to respond to several
questions regarding issues that were raised at the Oversight Hearing your
Committee held on December 6, 1995. We are very thankful to you for
presenting us with these questions, Senator McCain, and for making our
response a part of the public record of the Oversight Hearing.

We wish to express our sincere gratitude for this long-awaited opportunity
to express ourselves and to be heard. Out tribes' NAGPRA
representatives have provided much of the responses submitted herein
Senator, they can speak with the voice of experience, based upon ten long
years of working in the reburial and repatriation issue, responding to one

P. O. BOX D • FORT YATES, NORTH DAKOTA 58538 PHONE: 701-854-7201 or 701-854-7202 • FAX 701-854-7299

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obstacle after another, as you will soon see for yourself. Through the
members of the North Dakota Intertribal Reinterment Committee our
tribes tried to sound a warning years ago about many of the issues you
raised, particularly those dealing with new ruling from Hawaii, in an
attempt to prevent the predicament we are in today. You can imagine our
relief and gratitude that you heard us, Senator McCain, and gave us this
once-in-a-lifetime opportunity to share our concerns, problems and
proposed resolutions with you and the rest of the Senate Committee on
Indian Affairs. Thank you for listening and responding so quickly and
decisively.

In addition to providing complete responses to all the questions, we are
submitting our summary of the Hawaii ruling, and our opinion as to its
overall soundness and potential impact upon all Native peoples. We are
grateful to Senator Inouye for brining this to our attention - there are grave
matter therein that all Native peoples need to consider and prepare for.
We have included several documents to provide justification and
documentation for many of the issues we shared with you in our response.
If you have any questions, or wish further information, please do not
hesitate to contact me.

Sincerely,

Jesse Taken Alive
Standing Rock Sioux Tribe

enclosures

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Comments to : Na Iwi Na Kupuna Mokapu, Heleloa, Ulupa'u A Me Kuwa'a'ohe

Vs. John Dalton - Civil No. 94-00445 DAE - Filed July 25, 1995

This court case raises a series of concerns mostly generated by the Public Law 101-601
itself Certain policies were clearly not established in the policy making process and
presumably would be addressed in the regulatory process. In defense of the law, it was to
be all inclusive with Native Americans and Native Hawaiians, which may be understood
that any federal action brought against any federal agency, museum, or institution that is
mandated to comply with the law would have a superficial effect on all inclusive of the
Act.

In defense of the Native Americans and Native Hawaiians, one needs to understand the
cultural diversity of the two groups mentioned in the Act and are mandated to follow
procedural guidelines to make a request of any kind under the Act Although the law groups
these individuals together, it is understandable that the law makers did know the diversity
in both cultures and may have understood that to some degree that the precedence set in any
adjudication may negatively effect the remainder. Tribes to some degree may not have the
resources to litigate a issue against a federal agency or museum, thus would take a back
seat approach to their issue and would have to wait or live with a decision detrimental to
their concern.

Issues and concerns :

1). The Federal Defendant awarded a contract to the Bishop Museum to prepare a
inventory of the human remains disinterred from the Mokapu Peninsula in compliance with
section 3003 ofNAGPRA :

This process needs to be recommended to the National Review Committee for
review on the basis of whether a federal agency has the authority to relinquish his holding
to any other entity to comply with the mandate of NAGPRA. The law addresses the
definition of museum as meaning " any institution or State or local government agency (
including any institution of higher learning) that receives Federal funds and has possession
of, or control over, Native American cultural items. Such term does not include the
Smithsonian Institution or any other Federal agency ". Federal agency " means any
department, agency, or instrumentality of the United States. Such term does not include the
Smithsonian Institution ". One can see that the

statutory law never allowed the relinquishment of a holdings under the authority of a given
Federal agency, museum or institution. Also, the National Review Committee should also
consult with the Native American and Hawaiians to establish a curatorial program
universal to all museums, institutions, and Federal agencies, since this was a question in
the court case. Finally, the word study, including the terms methods, examination ,
techniques, or additional research, needs to be clarified by Congress since these terms are
referenced continuously ( in ex. " standard physical anthropology techniques ", page 3 of
court case ). The Native Americans and Native Hawaiians need to understand what is
being performed on the human remains.

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Page 2

2). Human Remains are deemed Cultural items :

This issue is addressed in 25 USC 3001 (section 2. definitions (3).). Congress
needs to amend the law to clarify this portion of statutory law. We recommend deleting the
wording of human remains from this section "cultural items". This in itself will clear up
aJot of future descrepancies that would be a major focal point in any litigation. If this
option is not open to the Tribes or Native Hawaiians, then Congress needs to clarify this
standing issue.

3). Standing:

In reference to the Presidential Executive Proclamation which states " The
United States is bound by a special trust relationship, requiring the Congress, the President,
and all entities of the Federal government to assure that ' the good faith shall always be
observed towards the Indians', as provided in the NorthWest Ordinance of 1781 ... legal
documents shall be interpreted liberally in favor of the tribes and as the tribes would have
understood them.", the tribes and the Native Hawaiians need to remind Congress of this
proclamation in reference to the issue and status of human remains. Currently under this
decision, the issue of whether human remains have standing in a court of law has been
decided and ruled that they don't. Requirements may be needed to protect the issue of
standing if the court relied only on the common law requirements, which was not created
for the requirements of NAGPRA. The question of guardianship to human remains has
always been an important part of any given culture, whether it has been addressed in
federal , state, or tribal law. The Congress needs to clarify this important aspect of the
court case, knowing that this issue will surface in all litigation dealing with the human
remains issue. Congress needs to provide a expressed provision granting standing and
guardianship to regional coalitions, tribal groups and Native American , Hawaiian,
individual(s) to satisfy the requirements ofNAGPRA, including consultation.

4). Additional Scientific Research :

Although NAGPRA does not allow for or authorize any additional scientific
study in 25 USC (section 5 (b) (2) ), it also contradicts it to the effect mat in the absent of
documentation, it allows study to determine cultural affiliation, origin. Congress needs to
impose limited study or research restrictions to safeguard this very sensitive portion of the
law.In light of the issues raised in this court case, which was prior to any direction given in
the form of regulations, we recommend that Congress needs to review all issues we raise
in mis letter of response. Congress does have a trust responsibility to all the Native
Americans and Native Hawaiirns to protect our vested interest and protect the spirit and
intent ofNAGPRA. All issues raised in the Hawaiian court case, if not addressed, will
dismantle the very efforts of all who had contributed to the enactment of this very important
Act

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Page 3

5). Trust Responsibility :

The court ruled on the trust responsibility, citing Doski v. Goldseker Co.
(4th Cir. 1976 ) and United States v. Deluxe Cleaners and Laundry, Inc. (4th Cir. 1975 ). "
This court has previously found that the federal government has no trust responsibility to
Native Hawaiians where the relevant statutory language does not explicitly indicate a trust
duty." The court also views 25 USC ( section 12 ) as a disclaimer clause.

We would recommend that Congress fulfill its directive in the Presidents
Executive Proclamation, and direct the Federal agencies, museums who received any
federal funding , that

they will carry out the mandates of NAGPRA and they do have a trust duty to the Native
Americans and the Native Hawaiians. •

6). The Inventory is subject to FOIA :

The court determined that the inventory information is subject to FOIA
because it does not meet any of the nine exemptions. The Federal government is well
aware of the sensitivity within this issue with tribes. Not only are the tribes constantly
fighting to protect their sovereignty, land base, language, culture, religion and human
remains, they now have to protect various information critical to our very existence. Does
the disclosure violate the rights of tribal members, tribes in certain confidentiality or
privileged information on religious practices, and our spirituality when certain individuals
or interest groups would exploit our ways for monetary advancement, if it is mandated to
be published in the Federal Register ? Congress must amend the law to have this included
as a withholding statue and if not, at a minimum, restrict information to be published in the
Federal Register, limited only to notification of a repatriation request, stating the area if
known of acquisition, number of items, and list potential tribes.

Congress needs to also define inventory, scientific studies, and scientific
information in order to explicitly imply what is restricted and what is not, if Congress does
not make NAGPRA a withholding statue. One question needs to be asked by Congress and
the tribes is how did the scientific community or museums arrive at the $500.00 to $600.00
dollar figure needed per human remain to establish origin. The type of study needed to
determine tribal affiliation, and what is the dollar amount to determine this? Also, what is
the process to document or confirm ethnicity from a physical anthropological point of
view,as cited in the court case on page 35 ?

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The Hawaii court ruling needs to be fully reviewed by the committee or the Solicitors
office to review the impact it has on NAGPRA. We recommend this and also to consult
with the tribes in the Nation on the approach they will be taking It is obvious that the ruling
may have a effect on the final regulations currently being implemented.

One point that stands out and is one of the major factor in the case is compliance. The
defendants position in his capacity was that absent of no direction in the form of
regulations, the issue of study was left up to interpretation and the court looked in that
direction, also in the house reports, the testimony on the bill during testimony, and
documentation on the history of the law during formation. This raises a serious question to
compliance to the law, how this ruling plays with the interpretation of the regulations, and
how compliance will be approached. Currently, we understand different Federal agencies
and museums are approaching the law on how additional information or study is needed for
compliance. The second serious concern and may be the most frightening, is if the Federal
agency or museums can turn over their collections to another entity for inventory and
compliance to the mandate of NAGPRA. We understand this is unallowable but now may
take this avenue because of this ruling. We recommend that the Senate Committee on Indian
Affairs, and the Congress correct this situation and restore language that is very clear to
Federal agencies and museums that they have a clear responsibility to the mandates of
NAGPRA. We also may point out that we are aware of Federal agencies ( particularity the
National Park Service, The Army Corps Of Engineers, Bureau of Reclamation, to name
a few ) who are contracting this responsibility out already, or making Memorandum of
Understandings with the Smithsonian Institute or others, on completing their responsibility
to the mandate of NAGPRA. If the National Park Service is delegated the responsibility
from the Secretary of the Interior to oversee compliance to the law and want to be the
regulators, we ask again , who is going to regulate the National Park Service on
compliance to the law, Congress ? We request that the Senate Committe on Indian Affairs
investigate this question personally, and ask the Review Committee and the National Park
Service, are any of the Federal agencies in compliance ,is this happening ? The Standing
Rock Sioux Tribe would like a response to these specific questions and suggest you follow
up with the three Federal agencies we mention to see if their is merit to this issue we raise.
Only then will you understand that these and numerous issues we have raised at nearly all
the National Review Committee meetings during public testimony, but have gone
unnoticed. Please intervene on behalf of us.

We would also recommend that if legislation is proposed to the Congress and testimony
is anticipated, that a member of the North Dakota Intertribal Reinternment Committee be
afforded such time to present testimony. If tribal leadership is requested, that a member of
the Dakota Territory Chairmans Council be afforded such time to testify.

We would like to thank the committee for requesting a response to the Hawaii decision .
Should any additional information is needed, please feel free to contact myself, Jesse
Taken Alive, Chairmen of the Standing Rock Sioux Tribe, 701-852-7201 . Thank You .

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QUESTION 1, Page 1, McCain Letter: Is it possible to create tribal/museum agreements
to protect confidentiality?

When our tribes first reviewed the proposed regulations in May of 1993, we reacted
strongly to language which (a) accepted as fact museums' questionable ability to determine
tribal affiliation of our remains (b) museums' ability to determine what is sacred to us and
(c) never addressed whether or not sacred information would be protected or restricted.
Our tribes submitted written testimony to the National Park Service in 1993 objecting to
regulatory language giving museums and federal agencies the ability to determine what,
among their collections, is sacred, as well as the tribal affiliation of human remains in their
possession We forsaw many inherent problems in this proposal, including the issue of
confidentiality We were aware that the NPS planned to publish detailed listings of
repatriated human remains and other items of sacred and cultural patrimony, and instead
advised them to publish general statements in tribal newspapers or other media located on
or near affected reservations, or to have letters sent directly to other tribes who may have
an interest in the materials We advised this action because we were concerned about the
safety of the remains and burial belongings once the public discovered where they had
gone But the Park Service was adamant and the language stayed in the regulations.

The fact that determinations of "sacredness" have now been left to our biggest opponents
in the issue has created the present situation where tribes are also required to divulge
sacred (and very often secret) information in order to identify sacred objects and prove
our current or continuing use of these objects. The law's current inability to restrict access
to this sensitive information by any person is truly the icing on the cake - the real problem
is that we tribes, who alone could be said to have "expertise" regarding our sacred things,
have been totally circumvented in a critical decision-making area, and the power to control
what is repatriated has been handed over to our most active opponents, probably all of
whom come from a totally foreign culture which has no true knowledge of our sacred life.

Unless all museums and federal agencies have to restrict access to sacred information
or knowledge by any person for any reason, we do not see the feasibility of future
agreements on the matter. We believe this restriction will have to apply to all records
dealing with our ancestors' remains, all items of sacred patrimony, and perhaps to items of
cultural patrimony as well. We discuss below the reasons for our position.

It may be that some tribes will be less sensitive to this issue, however, we can speak only
for our tribes from the cultural/spiritual perspectives and responsibilities that we have. In
addition, the option of agreements is already available to tribes under 25 USC, Section 1 1
(l)(b) of the Act in the section entitled "Savings." The question remains, however, as to
whether or not museums and federal agencies will agree to this type of restriction. If they
don't (or cant) agree to such restrictions, what will be the tribes' option then? We believe
the only answer will be to amend the statute so that tribes' individual needs are met. We
believe that any such amendment must give tribes the ability to determine for ourselves
what is sacred in a given museum's or agency's collections, and also allow tribes to decide
for themselves whether or not to share sacred knowledge with the public or keep it

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restricted. Only then will the process have been made flexible enough to meet the
diversity in value systems and beliefs present among Native peoples today

Again, we believe that not all information must fall into this restricted category, indeed,
only two types of information need be restricted: (1) information relative to the
repatriation and reburial of specific human remains and funerary objects should be
restricted to anyone except appropriate tribal NAGPRA officials who may have an
interest, and (2) access to all information relative to the identification of our tribes' sacred
objects must be restricted to any person for any reason

We realize that cries of censorship will be heard when the science and academic
communities are faced with the position we have taken, however we also realize what will
happen to information about our sacred things if steps are not taken now to ensure that it
is kept confidential: first, it will be collected, catalogued and curated the way the contents
of our ancestors' graves have been all these years, then, i f will be loaned to various
scholars and academicians as fodder for a whole new round of papers, articles and books.
They will be paid handsomely for their efforts, thus perpetuating and ensuring their status
quo. Our sacred knowledge will enhance and upgrade their reputations and their resumes.
This will be particularly true of those scientists and scholars who "specialize" in a certain
tribe or geographic region Once this information is published, the "New Age" communi-
ties will also exploit and sell our sacred knowledge in pseudo-ceremonies along with
others they are already selling to unsuspecting, needy consumers And we Native people
will forced to watch as, once again, our sacred and spiritual culture is "mined" by the
dominant society It must also be said that much of this sacred knowledge is
restricted to certain elders and medicine people among our tribes - not even all of
our tribal members have access to this information!

Another problem with determinations made by others outside our culture: we have an
instance where the North Dakota State Historical Society failed to (a) return to our tribes
three shell masks which had been identified by former staff at that agency as burial objects
associated with human remains excavated from a large burial grounds and released to us in
a previous repatriation and (b) failed again to list those burial objects in a NAGPRA
inventory because, suddenly, they're no longer considered by current staff to be burial
objects. To us, anything found near, in or on top of a burial site is holy because it belongs
to the spirits The Society, however, does not want the words "sacred" or "holy"
associated with these masks, because they want to keep them If we hadnt known those
burial objects existed, we would not have been informed of them through the process
required by NAGPRA, nor would we now be able to begin the dispute resolution process.
This is what happens when museums and federal agencies are allowed to determine what
is sacred, what is a funerary object, and what tribe remains are affiliated with.

Because the science and museum industries have been given the right to make these
determinations, and to put things bluntly, we do not trust that we have been given a full
accounting of all the collections, how are we to fulfill our responsibilities in bringing home
all of our relatives and sacred belongings available to us under NAGPRA? By trusting

217

that our biggest opponents in the repatriation struggle will give us all the facts we need to
repatriate our sacred and cultural property 9 What about matters in which they have no
expertise, such as what is "sacred" to «s 9 The fact that there is no test method available
today which conclusively identifies the tribal origin of Native human remains also gives
rise to many other questions and doubts about why the museums were allowed to make
these determinations We must be allowed to decide for ourselves, Senator McCain,
the treatment and disposition of all human remains excavated from our aboriginal
homelands, as well as the treatment and disposition of human remains for which
original location is unknown and how much, if any, of our sacred knowledge will be
made available to the public.

For us, this is not an issue that can be resolved on a case-by-case basis We cannot allow
any sacred information or knowledge about any of our sacred objects to be recorded or
otherwise retained by museums or federal agencies, unless that information is tightly
sealed Senator McCain, please try to see things from our viewpoint: we lost our
homelands, we lost our rivers, our mountains, our burial grounds, we are losing our
languages, our stories, our cultures We want to say to America, "Please, please, just let
us keep our religion, our spiritual way of life, to ourselves! We are almost losing that too!"
Of all the ethnic groups present in our homelands today, indigenous people in America
have been singled out for a level of exploitation, robbery, appropriation and study
unrivaled anywhere else in the world We have withstood, and borne, and survived this
institutional genocide for over five hundred years We just want it to stop We just want
to be left alone, to regain control of our lives, our histories and cultures, and our future as
Native peoples. Is that asking so much? We don't think so.

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QUESTION 2, Page 1, McCain Letter: (A) Do you still feel that regional tribal coalitions
should be established' 7

Now more than ever, regional tribal coalitions are needed to provide input, direction and
expertise to the NAGPRA Review Committee, the National Park Service, and the
Secretary of Interior Several critical sections of draft regulatory language dealing with
"Reserved" sections of the law are soon to be published for public review and comment
Remember, these sections were placed in "Reserve" status by the Park Service, due to
their controversial nature We submit that tribes must have m eaningful
representation and in put i n t o al l discussio ns regarding these draft reg ulations. Who
knows how many drafts have already been written and discarded by now, all without one
iota of input from the very people who will be directly impacted by the language therein?

Moreover, NAGPRA Review Committee member Dan Monroe told us a few years ago
something we already knew and worried about: after inquiring why we were putting so
much energy into opposing the current set of draft regulations (now finalized), he stated
that the "REAL battle is going to boil down over the unaffiliated and unclaimed human
remains " (Washington, DC meeting of the NAGPRA Review Committee, Sept. '93 )We
knew then and we know now that what he said is true: for that alone we Native peoples
need a direct, meaningful role in the development of all future regulatory language if we
are going to adequately respond to the impending battle over our poor relatives who defy
Western scientific identification methods For over a decade now, the North Dakota tribes
have maintained the following position on our relatives' remains: If they are Indian, if they
come from our co ll ect i v e aborig i n al h o m ela n ds, they and their personal belongings must
be returned to us for rebural on Indian lands Anything less would be an abrogation of
their self-evident human right to rest in peace, and a negation of our responsibilities to our
ancestors, a duty to return them to and protect their sacred resting places.

We have discussed this position with tribes from Maine to Washington state, from Florida
to southern California, and many, many points in between during the last ten years We
have met with almost unilateral agreement from scores of other tribal NAGPRA
representatives on this issue. Those who did not agree did so only because their spiritual
beliefs do not place the same value on human skeletal remains, even so, however, many of
these tribes expressed the desire to have them removed from display or curation in
museums Because many indigenous nations formerly or currently share aboriginal
homelands, and because they also subsequently share similar spiritual values where
reburial and repatriation are concerned, the proposal to direct Secretary Babbitt and the
Park Service to work directly with regional tribal coalitions is not only sound and practical
for the federal government, it is the quickest, most economical and convenient way we can
find to achieve consensus on NAGPRA-related issues in Indian country today

Moreover, as w e said t o y ou be f o r e Se n ato r , we maintain that the serious p roblems
inhere nt in the final regulations represent major Indian policy changes successfully
and craftily conducted through the regulatory process. We need direct and

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meaningful input to prevent this from happening a gain with the critical "Reserved"
sections!

Senator McCain, you will see in our answer to Question #3 that we had serious doubts
from the beginning about the NAGPRA Review Committee's ability or even willingness to
reflect our concerns and issues in the regulations. Of the three Native members appointed
to the Committee, one of them did not understand the language used in the process
because English is not his first language, and repeatedly informed the rest of the Committe
of this fact The other two members both admitted that they did not understand the
language or the process either. The remaining four members come from the museum or
science industries. Our response to that is this: what were they doing on such an
important Committee? Were our rights protected by them? Did they speak up for us?
Did they provide us with direct, meaningful representation on critical matters, such
as the reinterpretation of Indian lands? Such as who decides what is sacred? Were the
Native members listened to by Secretary Babbitt and the Park Service, or simply
exploited? Our own tribal NAGPRA representatives all but three meetings of this
Committee, and only twice did we see one of these Native members speak up in defense of
tribes These defenses came from the man for whom English is a foreign language. We
feel in many instances that they did and continue to do their best - but it was not good
enough, it wasn't what was needed, obviously, to keep the final regulations from
gutting the law of its protections to tribes.

In another instance, however, where the unaffiliated and unclaimed human remains are
concerned, one of the Native Committee members, Chairwoman Tessie Naranjo, openly
and angrily disputed our tribes' offer to rebury all of these remains in the event there was
no one else to care for them. We feel she neglected her duty to listen to, weigh, and
represent ALL indigenous nations' values in this regard, but in response to her reaction
we proposed the idea of creating re gional tribal coalitions who would each determine by
consensus the treatment and disposition of all unaffiliated human remains that come from
their respective regions, based upon their respective value systems and beliefs. This leaves
the issue of what to do with those poor Old Ones who cannot be culturally affiliated and
there is no available knowledge about the location of their original burials. Again, this
determination should be left in the hands of tribes, and it is one which can be made col-
lectively by the regional tribal coalitions. Our tribes' offer to rebury them on Indian lands
still stands.

We have been convinced of the feasibility of these coalitions for many years, Senator, and
have proposed these coalitions to the NAGPRA Review Committee at its meetings at
Phoenix, AZ, Rapid City, SD, Albany, NY, and Los Angeles, CA The NAGPRA Review
Committee must agree with us about these coalitions, as they suggested tribal coalitions
work together to decide what will happen with the unaffiliated and unclaimed human
remains in their recommendations to Secretary Babbitt In fact, we feel so strongly about
all the benefits of creating regional coaltions of tribal NAGPRA representatives that on
February 10 and 1 1 we will be hosting a conference to which all of the tribes in the United
States are invited, for the express purpose of organizing these coaltions, discussing

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regional cemetaries versus a large national cemetary for our ancestors, and creating unity
on all NAGPRA-related matters Given the opportunity, we can create solutions which
most perfectly suit our needs and, more importantly, the needs of the Pitiful Ones who
have languished in museum collections for many, many years To us, tribal identification
means very little in the face of a Spirit Journey - all that matters is that these Old Ones be
given the dignity of peaceful rest.

For all of these reasons, it is of paramount importance that Secretary Babbitt, the
National Park Service and the NAGPRA Review Committee be required to work directly
with regional, tribal coalitions comprised of tribal NAGPRA representatives. These
individuals, in our experience, have hard-earned expertise and detailed knowledge of what
their tribes are going to need to make NAGPRA do what Congress intended it to do:
bring home our relatives and their personal burial belongings, as well as certain items of
sacred and cultural patrimony As you know Senator McCain, the NAGPRA, like most
legislation, is a collection of compromises between tribal needs and the needs of the
science and museum industries The situation becomes problematic when individual,
sovereign tribes are prevented from negotiating their own compromises, based upon their
own needs and interests Most of us did not negotiate the compromises contained in
NAGPRA, indeed, most of us were unaware that compromises were being made in our
behalf That is why regional, tribal NAGPRA coalitions are so important, so critical
to the future: it is the only mechanism we can find which will provide all tribes with
a voice. If we are not allowed more direct participation in the process, and if the process
is not changed as our tribes have asked, history will repeat itself, and once again we will
watch helplessly as the law is gutted and another dream of equal treatment and justice for
Native people fades into obscurity and impotence.

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QUESTION 2, Page 1, McCain Letter, (B): To what extent were tribes in your region
consulted on the development of regulations?

In our view, the tribes in our region were consulted only to the extent required to meet the
minimum standard of law We submit the following information to illlustrate how
meeting the minimum standard of law currently does not protect the interests or rights of
tribes, nor does it ensure that Congress' intentions are carried out in subsequent regulatory
language.

After completing three drafts of regulatory language without notifiying or consulting tribes
in any way, a solicitor from the Department of Interior and National Park Service
employees published a fourth draft in the Federal Register on May 28, 1993 Many of the
tribes in our region cannot afford to subscribe to the Federal Register, and so were not
"consulted" at all, unless the NPS did a special mailing we are unaware of Even if the
NPS did do this, however, it has been our finding that many, many tribes were completely
unaware of the passage of NAGPRA until long after the fact, much less cognizant of its
language, provisions and meaning sufficient to submit written testimony before the
deadline How's that for consultation for you? We should have all been involved in it
from the beginning, and that could have been accomplished through the organization of
regional, tribal NAGPRA coalitions. Our tribal governments are constantly putting out
one fire after another, and do not have the staff or resources to watch everything that
Congress does, or respond to calls for testimony in a timely fashion We must have time
to organize, react, and network with one another, and that, Senator McCain, is an integral
part of the problem with meeting the minimum standard of the law! It just doesn't work
for us, it works against us, and is often deliberately used in this way to prevent tribes from
having more control over their own lands, their own resources, and even their own dead
relatives and sacred belongings.

After the sixty-day comment period ended, the only opportunities we had to consult cost
our tribes thousands of dollars in travel funds to follow the NAGPRA Review Committee
as they conducted their meetings around the country. North Dakota tribes absorbed these
costs in a desperate effort to be heard, to change decisions that had already been made
without our knowledge or input, to obtain some level of input into a process where our
role was kept to a minimum, and to raise awareness that things were not right with the
proposed final regulations In our view, the lengths to which we went to create awareness
at all levels is commensurate with the seriousness of the problems We must have more
direct and meaningful representation. Senator, our tribes must be able to represent
themselves on matters as imporant as this.

Our Tribal leadership used every instance they travelled to Washington, DC, to meet with
our Congressional delegates about the issue, and Standing Rock Sioux Tribal Chairman
Jesse Taken Alive and Councilmember Tim Mentz even went to the office of Tim
McKeown at the National Park Service to obtain a copy of the proposed final regulations,
and were refused a copy by McKeown as he held one in his hands! All of our attempts to
obtain, through legitimate channels ranging from the Office of the President to the Office

23-074 96-8

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of the Assistant Secretary, a copy of the proposed final regulations for review and
comment failed, although we had promises from individuals ranging from NAGPRA
Committee members to federal employees from other agencies to provide us with a copy.
Our attempts to review the proposed final regulations were made over a period of two
years, beginning in September of 1 993 Not until the sp ring of 1995 did we learn that
the decision tQ refuse tribes a noth er review and comment period, allowable hy law,
was "an administrative , i ntern al deci sion of the N ational Park Service," although we
had been asking and asking why we were not allowed to see them. (Tim McKeown,
NPS, NAGPRA Training Workshop, Haskell Indian Nations University, Lawrence, KS,
April 18-19, 1995 ) At the Albany, New York meeting of the NAGPRA Review
Commitee, even Committee members were refused when they asked to see a copy of
the proposed final regulations.

Finally, a "bootleg" copy of the proposed final regulations was sent to us by a tribal
member from another state These "bootleg" regulations, already revised (according to
Tim McKeown of the NPS, who made this statement to our tribes at a conference held by
the Nat'l Museum of the American Indian in Mille Lacs, MN in September of 1995) and
thus rather obsolete, were given to this individual by a female employee* of the National
Museum of the American Indian, which is specifically exempted from the provisions of
NAGPRA, and is governed exclusively by the Museum Act! What was she doing with a
copy of the proposed final regulations to implement the NAGPRA, and how did she get a
copy when access to This information had been rep eatedly denied to the very p eople who
are directly impacted by the final reg u la t ions? How many ot her members of the science
and museum industries were in Possession of these reg ulations when tribes were
c ategorically denied access?

We believe that the restricted level of consultation and input by Native nations and the
total control of the regulatory process by the National Park Service has resulted in the
suppression of our rights granted under the law, elimination of protections to tribes
intended by Congress, and erosion of tribal sovereignty in major Indian policy changes
successfully manipulated through the regulatory process. According to the final
regulations, non-Native employees of museums and federal agencies, many of whom have
been and continue to be hostile to Native attempts to repatriate, are making determina-
tions about the sacredness of items created by our people, and thus which items will be
repatriable to tribes, without the necessary expertise or knowledge, which, we note, is
knowledge they will never have. It is our people, and our people alone, who possess the
expertise necessary to inform all decisions made about these items, but we have been
efficiently removed from the realm of decision-making. This happened because we were
not consulted in this matter, nor were we listened to when we spoke up without the
relative luxury of "consultation"

Also according to the final regulations, we will have to watch as private landowners ( read
non-Indian) within our own reservation boundaries do whatever they want to the
unmarked burials of our relatives found on their lands! That is not what the law says,
Senator McCain! The reinterpretation of the statutory definition of "Indian lands" flies in

223

the face of every piece of accepted national Indian policy and legislation existent today
We believe the behavior of the Secretary of Interior and the National Park Service is
unconscionable, since they were directed by Congress to carry out its initiatives in the Act,
and, we feel, deliberately did not Had our tribes been consulted on these matters in a
more direct and meaningful way, Senator McCain, had we been allowed to represent and
negotiate for ourselves, we would not be faced with these crippling problems today

Because our level of input and control was kept to a minimum, our tribes did everything
we could to (a) obtain a more meaningful and direct level of participation (b) stop the
destructive process itself through repeated requests, beginning in September of 1993, for
an Oversight Hearing to review the problems and issues we raised and (c) ask for help and
intervention from elected leadership, Secretary Babbitt, Assistant Secretary Deer, and the
Senate Committee on Indian Affairs We wrote letters, we submitted testimony, we
attended meetings, we made phone calls, we did everything humanly possible to beheard
We tell you all this, Senator McCain, and we include copies of our correspondence; to
show that we saw these problems coming down the road a long time ago, and we were
trying to raise awareness a long time ago

But no one responded to our requests for an Oversight Hearing when steps could
have been taken to prevent the looting of the law through regu latory language. Now
that the piper must be paid t it is our Nations who have absorbed that cost, and we
have paid with tears running down our faces as we watched several years' of hard
work, advocacy and trust swept away in the stroke of a bureaucratic pen.

We say again that the present system of consultation does not work, it never has,
because a federal agency has only to meet a minimum standard of law that does not
provide us with meaningful representation or protection of basic, human rights
taken for granted by all other Americans, here in our own homelands! As we told
you earlier, the NAGPRA representatives from our tribes are even now preparing an
official complaint against the Bureau of Reclamation, which decided to "give" our
ancestors' remains excavated from their lands to the Smithsonian Institution The
Smithsonian, moreover, does not have a repatriation deadline, and their Repatriation
Office is, even as you read this, conducting expensive, instrusive scientific studies on our
ancestors' remains, without our permission and without consulting us! Reclamation
claims that since it did not have "possession" of the remains, they did not have "control"
either, and, without notifying or consulting our tribes, relinquished both to the
Smithsonian Institution Reclamation also claims that it has met the minimum standard of
the law in consulting our tribes after the fact.

We say again that the present process has protected the personal, vested interests of
the science and museum industries and this gift was delivered to them on a silver
platter by the National Park Service, which was entrusted by Congress to implement
its intentions and initiatives to correct a sad and tragic chapter in American history.
Not only were we wronged, Senator McCa in , but the members of your Committee

$ tidttoJUL bvoiw vu- &W^o wi*v ^4>(^-^r-

224

and other Congressmen who worked hard for and supported this legislation are
victims as well.

It is imperative, and we again submit this request, that the Senate Committee beg in
a dialogue with tribal leadership to review and amend the Administrative
Procedures Act to create more direct and meaningful representation of Indian
Tribes whenever legislation or regulations are drafted to implement changes which
will affect our peoples. As you can see from the serious problems we have shared with
you, we require more than a simple advisory role, Senator McCain, we require negoiatory
powers, we require oversight, we require intervention and protection. Nothing will
change until the system changes.

Please find attached to this section of our response copies of correspondence we have sent
over the years regarding our attempts to obtain more meaningful representation, consul-
tation, and resolution to the very problems in the regulations. The only responses we
received were from Senators Dorgan, Conrad and Daschle, and, through the efforts of
Senator Dorgan, Assistant Secretary Deer's promise not to sign off on the proposed final
regulations until after another public comment period was held - a promise she subse-
quently broke, enabling the regulations to be "hustled" into the final stage.

* Information relative to the individuals involved in this situation is available in the event
that it is needed. We refrain from mentioning names in this instance only because we do
not wish to create problems for the participants, however, if you require their names to
determine the validity of the statement, that information will be provided to you

225

Question 3, Page 1, McCain Letter, provide the Committee with a response regarding the
development and scope of the final regulations

Senator McCain, you can see from statements made throughout this document that we
have had problems with the development and scope of the final regulations since a
proposed draft was published in May of 1993 Problems with development include a near-
total absence of tribal participation, input, representation and control Add to this the
NPS' administrative refusal, despite repeated requests from tribes, for another publication
and another comment period of proposed regulations Mix in a dose of the BIA's usual
response to pleas of help from tribes, which accounts for Assistant Secretary Deer's
decision to sign off on the proposed final regulations even though she'd promised us she
wouldn't, and you have a recipe for disaster, and you have our view on the development of
the final regulations That's also where the scope of the final regulations enters the
picture

The damage done to the Act itself, not to mention protections granted to tribes under the
Act through the promulgation of these regulations, is enormous in scope The recent
Hawaii ruling is an excellent illustration of how the law has been reinterpreted to benefit
the personal, vested interests of the science and musem industries, something we predicted
years ago Reinterpretations have occured which condone scientific studies not covered in
the Act Reinterpretations of Indian lands, Indian tribes, possession and control, and even
a new definition of Native human remains have all resulted in nothing less than major
Indian/U S policy changes manipulated through the regulatory process.

Irreparable damage has been done to not only the trust relationship Congress is
responsible to carry out with Native nations, but to the quality of trust itself in all
relationships between our tribes and the federal government, which was not doing that
well to begin with We trusted Congress to provide us with a mechanism which would
allow us to bring home our sacred and cultural property, as well as our dead and their
belongings, so we could rebury them with dignity, privacy and respect We trusted the
process, which allowed the National Park Service and the NAGPRA Review Committee
to promulgate regulations to implement the letter, the intent and the spirit of the law We
trusted the dispute resolution process provided for in the law, which directs us to the
courts in the event that informal mediation fails.

As in anything created by human beings, the Act is not perfect, but we are finding that the
imperfections and loopholes most heavily affect the needs and interests of Native peoples,
and not our opponents, the museum and science industries As we have said before, the
process is replete with problems and pitfalls for Native peoples, and must be corrected to
give us a more direct and meaningful role in legislation that directly impacts our peoples

The process has diverted, negated and eroded the plain meaning of statutory language in
matters ranging from tribal lands to the dead bodies of our relatives, our loved ones We
screamed and hollered about the process and the potential scope of the regulations, and no
one listened That's another problem with the process: tribes are not heard As to dispute

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resolutions, a cursory reading of the final regulations will show how, time and time again,
tribes are directed to the courts to find relief for every single dispute with museums and
federal agencies! We are poor, and cannot afford to litigate every time a museum decides
it does not have to return our dead or our sacred and cultural property.

Moreover, the recent Hawaii ruling very clearly illustrates ambiguities and loopholes in the
law that protect the interests of the science and musem industries, and not Native peoples'.
So you see, Senator, the development and scope of the final regulations have had the
effect of preventing tribes' from enjoying the full benefits intended by Congress when the
law was passed in 1990 We maintain that the deck was stacked against us from the
beginning, and the results of playing with a stacked deck are there for you to see in
the final regulations, which are of little use but great harm to our tribes as we
attempt to implement the original intentions of the Native American Graves
Protection and Repatriation Act.

227

ANSWERS TO THE QUESTIONS DEALING WITH THE HAWAII RULING

QUESTION 1, Page 2, McCain Letter, part (a) whether NAGPRA inventory information
should be subject to public disclosure.

As we discussed earlier in this document, Senator McCain, our tribes do not feel that
NAGPRA inventory information, dealing as it does with human remains and burial
belongings, should be subject to public disclosure Letters can be sent to those tribes who
may have an interest in a particular claim, but when regional coalitions can be organized,
we will be reaching agreement about these remains ourselves, thus resolving any potential
claim disputes We are particularly concerned, Senator, about certain unscrupulous
individuals who have already approached our tribes and enrolled members about selling
(for amounts in the hundreds of thousands of dollars) certain artifacts and sacred objects.
Publications of inventories or repatriation activities are already being utilized by these
individuals to locate these artifacts and other objects , and to our knowledge, one war shirt
and a very special sacred pipe, both of great spiritual and emotional value, have been sold
overseas to unknown collectors In order to prevent exploitation of this type from
occurring again, publication of this information must be restricted to general information
and supplemented with letters to official NAGPRA representatives of other tribes who
may have a demonstrable interest Moreover, it is our great desire to accord our ancestors
the highest degree of dignity in a situation where a basic human dignity has been denied
them for many years, it will be extremely difficult to bring our relatives home in a private
and dignified manner when the news surrounding their repatriation and pending reburial
has been shouted from the rooftops We do not feel that our requirement of privacy and
respectful treatment of our people and our ancestors is unreasonable To that end, our
tribes offer our assistance in the development of any proposed amendment to the Act to
facilitate an exemption for this information under the Freedom of Information Act

QUESTION 1, Part (b), whether Congress should act to amend NAGPRA to provide
protection from public disclosure of information derived from NAGPRA inventories

The North Dakota tribes feel very strongly that Congress should act to amend NAGPRA
in this and other matters relating to the confidential treatment of information contained not
only in inventories, but also relating to items of sacred and perhaps even cultural
patrimony History serves us in this matter, since it illustrates very clearly what happens
when Native spiritual and cultural values are ignored, even though knowledge of them is
available to the general public: our oral history, ceremonies, stories and even our graves
were unabashedly "mined" by the science and academia, and even by the citizenry. The
very safety and security of reburial sites depends on Congress acting now to provide
restrictions regarding public disclosure. Now, more than ever, we require a little privacy,
a little respect, as we work to restore to our ancestors the self-evident, human right to rest
in peace and dignity Definite steps should now be taken by Congress to protect the
privacy of our tribes and our ancestors, and NAGPRA should be amended to
exempt all repatriation information from public disclosure , particularly since a
district judge has just decided for us that our ancestors have no rights, not even the

228

right to rest in peace and privacy enjoyed by all others who now live in our
homelands, and that we, as their descendants, have no rights to basic privacy,
human decency and respect for our spiritual values and beliefs.

Since the Hawaii ruling raises problems which were not anticipated when the law was
enacted, such as ensuring the right of privacy and respectful treatment for Native peoples
as they repatriate and rebury their ancestors' human remains and personal burial
belongings, it affords us the opportunity to consider other matters of confidentiality as
well It is our hope that the Committee can easily see how privacy is required in the
repatriation of sacred and cultural patrimony as well, beginning with the sacred knowledge
tribes are required to share in order to identify and claim our sacred and cultural
patrimony, and ending with the desire to repatriate and rebury our relatives with respectful
privacy, thus ensuring the safety and sanctity of all reburial sites. As we mentioned earlier,
Native peoples are just as vulnerable now as they were in historical times when they were
preyed upon by roving ethnologists, anthropologists and archeologists, who, convinced
we were going to vanish from the face of the earth, advanced upon our peoples with
greedy eyes and amassed huge collections in the process. The problem today is only
slightly different, since we are now assailed by collectors of a different sort - the kind who
want to sell our sacred and cultural patrimony overseas and who accomplish their aim by
dangling large sums of money before the eyes of vulnerable, impoverished tribal members
who can claim a lineal descent to famous political and spiritual ancestors.

Particularly in light of the fact that the ruling will not be appealed, we say again that
Congress must act now to protect the privacy and dignity of our ancestors, our elders and
spiritual leaders, and our entire Nations as we work to bring our sad task of reburial and
repatriation to a close. Things are painful enough; we should not have to endure all of
America watching over our shoulders as we rebury our dead: we will have to feed them,
we will have to cry for them, and apologize to them for the way they have been treated -
we will need privacy and, finally, respect from the society that did this to them. Is this so
much to ask? We don't think so.

QUESTION #1, part (c), whether protection from public disclosure of information
derived from NAGPRA inventories should be limited in scope, and if so, in what respect?

Senator McCain, as you have gathered from statements elsewhere in this document, our
tribes believe that protection from public disclosure of all repatriation information should
be very broad in scope, if all the problems associated with lack of confidentiality are going
to be addressed. We tribes urgently require the highest level of privacy if we are going to
ensure a dignified, peaceful and respectful return of our ancestral human remains, sacred
property and even items of cultural patrimony. It should not be left even to Congress to
decide how much, if any, privacy the tribes will require. That decision should be left to
the individual tribes themselves, as this is a decision we are entirely capable of making for
ourselves Outcomes of our decisions will vary, depending upon the spiritual and cultural
values maintained by the various Nations regarding this type of information To some,
like our Nations in the Northern Plains, this is an extremely sensitive subject, but we have

229

learned that other tribes have allowed news programs to cover reburial and other types of
ceremonies, indeed one tribe has produced their own video of a repatriation and reburial
ceremony. You can see, then, that our diverse cultures and value systems will require the
flexibility of being able to make all decisions about confidentiality for ourselves, and since
such a wide range is required to allow for this, nothing less than complete protection of all
repatriation records, materials and other information is required.

QUESTION #1, part (d), whether NAGPRA inventory information should be exempted
from the application of the Freedom of Information Act.

Once again, Senator, elsewhere in this document our tribes have maintained that complete
exemption of all repatriation information, including NAGPRA inventories, is absolutely
required under the Freedom of Information Act. Nothing less will suffice, in our view

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QUESTION 2, Page 2, McCain Letter, part (a), whether NAGPRA sufficiently addresses
the issue of necessary scientific studies which may be initiated during the course of
compiling and inventory to comply with NAGPRA

Senator McCain, we are so glad you asked us to respond to all of the questions you sent
us, but we are particularly glad you asked this question You see, Senator, our tribes
have had problems with this area of NAGPRA since we saw the first draft of legislation,
and called attention to our issues with it right from the beginning We felt, and continue
to feel, that the law's use of the word "study" was very ambiguous, particularly where
it concerned activities related to the compilation of inventories. Our tribes have
negotiated our way through a number of exit inventories at both the state and federal
agency levels, and in our experience the area of "inventorying" the remains of our relatives
appears to be the last bastion of hope for the science and museum industries who
desperately want to use "exit inventories" of our ancestors' remains to conduct one last
scientific examination of our relatives, with or without our permission, because they, too,
see the ambiguity in the law and hope to take advantage of it

Way back in 1988, we were calling for clear and concise language describing precisely
what museums and federal agencies were allowed or not allowed to do during an "exit
inventory" of our ancestors' remains We were told, however, that it was at our urging
that language was included to state that the Act was not to be construed as an
authorization of new scientific studies, and contented ourselves with that section of the
law. It has been, however, our direct experience that many, many federal agencies and
museums ignored this directive and subjected most, if not all, remains in their control or
possession to rigorous, state-of-the-art scientific study, under the guise of compiling their
inventories The Bureau of Reclamation, for instance, without notification or consultation
of our tribes, informed us that they developed an Inventory Plan (30+ pages), to be used
agency-wide, which calls for, among other things, radiography of our relatives' bones
Radiography is a procedure which requires that the bones be coated with a radioactive
liquid substance before photographing them with a special film Our tribes, over ten
years ago, officially took the position that we were categorically opposed to any type
of "study" of our relatives' remains and personal burial property. We are opposed
to photography , never mind radiography !

Our permission was never sought to conduct this or any other type of study on our
relatives, and had it been, it would never have been granted Indeed, our tribes knew
nothing of Reclamation's inventory activities until well after the fact Please find attached
a copy of their Inventory Plan, which was presented to our tribes' NAGPRA
representatives on September of 1995 by Reclamation, where you can see for yourselves
the level of study which has already been carried out under the cloak of conducting an
"inventory" and discovering "cultural affiliation" of our ancestors' remains Senator
McCain, please take careful note of what we are going to tell you now: There is not
now, nor has there ever been, a single scientific test method available which will
conclusively identify a set of Native human remains as to tribal origin. In our view,

231

and in the official position our tribes have long held on this matter, all such
determinations are based on conjecture and are speculative in nature.

Moreover, had the science and museum industries treated our ancestors' remains with the
barest of professional standards, they would now be able to examine existing records and
data to determine, to the best of their ability, the tribal affiliation of our ancestors' remains.
This, as you know, however, has not been the case, as our ancestors' remains and personal
burial belongings have been casually and sloppily stored in hallways, closets, in brown
paper grocery bags and feminine hygiene product boxes (one tribe was actually given
repatriated remains in this type of container by a state agency!), placed on public display
with no scientific or educational information - just for the sheer thrill (and some-times for
a price) of public viewing of dead Native people; loaned to colleagues and museums half-
way around the world and totally forgotten about until someone had to go looking for
them to complete their inventories, and generally stashed away in thousands of dusty
storage rooms and university labs all over the country Many of our ancestors were
simply packed up and shipped to historical societies, museums and federal agencies by
everyday citizens, who came across them in farming and other activities and "donated" our
relatives' bodies to repositories as "curiosities." All without our peoples' knowledge or
permission.

One federal agency that we know of, but probably others as well, has used the NAGPRA
inventory process to "give away" some of our ancestors who were excavated from their
lands - again, the Bureau of Reclamation. We were not informed of this "inventory"
decision until well after the fact, we were not notified, we were not consulted and so had
no opportunity to protect our relatives' remains from the clutches of the Smithsonian
Institution, who claimed "ownership" of the remains by virtue of having had "possession"
of them since they were excavated in the 1940's. Our hearts feel heavy and sad when we
think of the intrusive scientific analysis that is probably being aggressively conducted on
our relatives by the Smithsonian as you read these words

The point we are trying to make, of course, is that our relatives' earthly remains and
personal burial property have NEVER been treated respectfully or even profession-
ally by the science and museum industries, indeed society in general, to the point
that anyone even cared sufficiently about them to adequately document and store
their bodies once they had been yanked from their graves. It was only when Native
people discovered this deplorable situation and rose to stop the racist practice of the
robbery and study of our graves was the "loss" to science loudly and arrogantly
lamented. Amid great gnashing of teeth, the rush was on to study, document,
analyze and further desecrate our relatives before precious "scientific and cultural
materials" could be "destroyed" through reburial.

In our view, the science and museum industries have only themselves to blame that
they did not correctly catalog and store our dead relatives while they had them, and
should not now be allowed to gather one more iota of data from our relatives under
the cloak of conducting NAGPRA inventories. We said this back in 1988 and we are

232

still here to say it again, all these years later! It is, in most cases however, too late -
the damage has been done and so has the scientific analysis. Our tribes know
personally many members of the science and museum industries who would chuckle
smugly at hearing us utter that last sentence, and we don't mind telling you,
Senator, that thought fills us with pain and sorrow.

We suspected that this was happening all along, of course, and more or less knew
scientific study and analysis was surreptitiously conducted under the guise of inventorying,
but due to the secrecy and failure of federal agencies and museums to notify and consult
with tribes as inventories were initiated and compiled, we had no evidence until well after
the fact, and so, what could we do 9 It is our strong view that NAGPRA should be
amended to fine all federal agencies and museums who conducted this racist,
ethnocentric study without the notification or permission of the descendants of our
ancestors, and they should be made to turn over to tribes all documents and data
gathered from these studies to prevent them from ever benefiting from this ill-gotten
information. Apparently, this type of redress is what Hui Ma Lama was attempting to
obtain with their lawsuit, we wish to state here for the record that we are in complete
agreement with their intentions, and would have ourselves brought suit if we had the
financial resources to do so It is unfortunate that the judge in this case issued such a
narrow and ill-informed decision, more unfortunate still that the decision will not be
appealed. Due to that fact, Senator McCain, it is more imperative than ever that
NAGPRA be amended to address all of the issues raised in the Hawaii ruling, and
utterly critical that Native peoples be allowed a greater and more meaningful voice
during all deliberations about amendments to the law.

QUESTION 2, Page 2, McCain Letter, part (b), whether the Definitions section of
NAGPRA should be amended to include definitions of "inventory," "scientific studies,"
and "scientific information "

As we said earlier, Senator, our tribes argued for this clarification years ago when the
legislation was still being discussed by Congress We not only believe very strongly that
definitions of these words are needed still today, we offer you the following proposed
definitions, which our tribes have already used in agreements concerning existing
collections with state and federal agencies. They have worked extremely well and would
completely protect our position (and that of other tribes') on study or scientific analysis if
amended into the law

INVENTORY - shall mean the physical creation of (a) a listing of the contents of
containers storing human remains and/or personal burial belongings and (2) other existing
records.

SCIENTIFIC STUDY - shall mean any activity requiring the human remains or personal
burial belongings to be touched by anyone other than a tribal spiritual leader

233

SCIENTIFIC INFORMATION - shall include, but not be limited to, any data, records,
photographs, radiographs, plaster castings, measurements, weights, recorded audio or
video tapes, books, articles, essays, monographs, bulletins, test findings or results, or
professional scientific papers of any sort.

QUESTION 2, Page 2, McCain Letter, part (c), would further scientific studies, either
during the course of compilation of an inventory or after the conclusion of such an
inventory, be warranted?

Senator, based upon the official position taken by our North Dakota tribes, and based
upon all the foregoing statements in this document, our answer is short and unequivocal:
ABSOLUTELY NOT You see, based upon our spiritual beliefs, when the scientists and
others robbed their graves, our relatives were yanked out of the Spirit World, too - we
have seen them, where they're at, and they are pitiful, crying and lost. They wander
between this world and theirs, and they whirl above the places where their bodies are kept,
and they whirl above all of us, too, trying to get our attention so we can help them. The
fact that they are around us, restless and agitated, affects us, too, and our people have
suffered and endured too many tragedies to prolong the suffering by allowing any further
racist, ethnocentric study of our poor Old Ones Our ancestors and our people have
suffered enough, and, understandably, we just want it to stop.

Moreover, we have never benefited from these racist studies, and contend that the only
ones who gain are the ones who conduct them, but even these members of the science and
museum industries must be pitied, for their gain is only temporary and they must one day
go home to the Spirit World, too, and there they will encounter those they have violated in
their days upon this Earth. They are, indeed, to be pitied then.

QUESTION 3, Page 2, McCain Letter - should th e Congress amend the Act to provide
authority for legal actions to be brought by those who may qualify to serve as guardians
on behalf of Native human remains?

Again, Senator, because of our official positions on all NAGPRA-related matters, as well
as all of our foregoing statements regarding problems we have encountered, our answer
must be short and unequivocal: ABSOLUTELY YES An amendment of this kind will
provide immeasurable relief to Native people, in addition to critically necessary legal
standing for tribes as they meet with all kinds of resistance from the science and museum
industries, who must hate the thought of giving up any of their treasures, and who will
obviously subject themselves to new lows to keep whatever they can. An amendment of
this nature will empower all Native peoples as they struggle to make NAGPRA do what
Congress intended it to do, it will be like rain to a parched desert: finally, finally comfort
and succor! We cannot stress strongly enoug h , particularly in light of the recent
court ruling in Hawaii, how critically urgent it is for Congress to enact this type of
amendment to the NAGPRA.

234

CHAIRMAN

Gregg J. BourlanrJ

SECRETARY
Arlene Thompson

VICE-CHAIRMAN
Lanny LaPlante

The Honorable Senator John McCain
Senate Committee on Indian Affairs
United States Senate
Washington, DC 20510

Dear Sir,

P.O. Box 590

Eagle Butte. South Dakota 57625

(605) 964-4155

Fax: (605)964-4151

December 19, 1995

TRIBAL COUNCIL MEMBERS

DISTRICT 1
Raymond Uses The Knife Jr.
Vernon Mestes

DISTRICT 2
Ted Knrte Sr.

DISTRICT 3
Maynard Dupns
Ed Widow

DISTRICT 4
Robert Lotion Sr.
Gilbert Red Dog Sr.
Orvtlle LaPlante
Arlee High Elk

DISTRICT 5

Marlin Miner Sr.
Sam Annls
Robert Chasing Hawk
Lanny LaPlante

DISTRICT 6
Joan LeBeau
Louis OuBray

1 am submitting to you and to the Committee on Indian Affairs, for review and consideration, the following
comments drafted by my tribe regarding the final rule of regulations for implementing the Native American
Graves Protection and Repatriation Act; PL- 101-601. Attached, please find five pages of commentary that detail
our concerns that we have as Native American people, who regard with trepidation, just how poorly that the
regulations for NAGPRA. interpret and implement the statutory language.

I would also submit to you on behalf of the Cheyenne River Sioux Tribe of Indians That we the Lakota people
of the Cheyenne River Sioux Tribe, believe that the process of promulgating the regulations that was undertaken
by the National Park Service, has totally failed to adequately support and advocate the Indian peoples right to
repatriate without hindrance, our ancestors and their cultural items that have been stolen from our lands by
profiteering peoples seeking to achieve capitol gain at our expense

As Chairman of the Cheyenne River Sioux Tnbe of Indians, I submit that the Indian people have not been allowed
to fully participate in this promulgation process. And that our concerns for our ancestors have been shoved aside
and disregarded by those who were given the authority and directive to write the regulatory language that should
protect our rights and the rights of our deceased ancestors who have been held in captivity for so many years.

I respectfully request that you review the commentary submitted by the Cheyenne River Sioux Tribe and take
action towards addressing our concerns. And I pray that when you complete your review, that yourself, can begin
to understand our view of this situation and take whatever necessary steps that must be taken to address our
concerns and right the wrongs that have been perpetrated upon all the Indian people by the drafters of the
regulations, who have weakened our legal standing in using the law to repatriate our ancestors and our birth right
as Native peoples.

rland, Chairman
Cheyenne River Sioux Tribe

The blue represents the thunder clouds above the world where live the thunder birds who control the lour winds. The rainbow Is tor the Cheyenne River Sioux People who are
keepers of the Most Sacred Calf Pipe, a gift from the White Buffalo Calf Maiden The eagle feathers at the edges of the rim of the world represent the spotted eagle who Is the
protector ot all Lakota The two pipes (used together are for unity One pipe Is lor the Lakota. the other for all the other Indian Nations The yellow hoops represent the
Sacred Hoop, which shall not be broken The Sacred Cart Pipe Bundle In red represents Wakan Tanka-the Great Mystery All the colors of the Lakota are visible. The red.
yellow. Mack and white represent the tour major races. The blue is for heaven and the green lor Mother Earth

235

Section 10.2 Definitions

(b)(1) Lineal descendant - Although this clause acknowledges the right to determine descendance
by means of the traditional kinship system of the appropriate Indian tribe. In the form in which it has
been written in the regulatory language;

"means an individual tracing his or her ancestry directly and without interruption
by means of the traditional kinship system of the appropriate Indian tribe or Native
Hawaiian organization or by the common law system of descendance to a known
Native American individual whose remains, funerary objects, or sacred objects are
being claimed under these regulations.

The clause as written does not "specify" nor "mandate" that the applicable legal law to determine
kinship regarding the demonstration of Native American descendance to a known Native American
individual should be the "tribal law" of the appropriate Indian tribe. The phrase; or by the common
Icnv system of descendance, is ambiguous and can be inferred to mean that federal agencies and/or
museums can "choose" to recognize or not recognize tribal law regarding traditional kinship
relationships as acknowledged and supported by the governing Indian tribe to which the lineal
descendant is a enrolled member thereof

(b)(2) Indian tribe - as written, this clause with the concluding sentence: The Secretary will distribute
a list of Indian tribes for the purposes of carrying out this statute through the Departmental
Consulting Archeologist. Implies that only those Indian tribes with federal recognition are eligible for
making repatriation claims to federal agencies and/or museums. The phrase in the proceeding
sentence: which is recognized as eligible for the special programs and services provided by the
United States to Indians because of their status as Indians. Is ambiguous towards understanding if,
the clause is referencing Native American ethnic groups which do not have federal recognition as
Indian tribes

(d)(1) Human remains - although the clause appears to adequately define human remains. It should
incorporate within it's language a statement that specifies it is the right and privilege of any Indian
tribe to define within the context of it's own cultural reckoning, what it as a Indian tribe, considers
a human remain to be for the purposes of repatriation.

(d)(3) Sacred objects - this clause needs to "specifically" state.

The appropriate Indian tribe seeking to repatriate objects from a federal agency
and/or museum, shall be the sole authority to identify and define what objects in
the control of a federal agency and/or museum are "SACRED" to that and only
that particular cultural group which is making the repatriation request The
determination of what object is and/or « not considered a sacred object rests solely
and exclusively upon the decision of the repatriating Indian tribe.

236

Secondly as written, the clause hinders the repatriation of sacred objects by Indian tribes because of
the usage of the words - specific - needed - contained within the first sentence of the clause Due to
the diversity of how different and shared cultural groups worshiped the creator where the individual
belonging to the cultural group was allowed to acknowledge and supplicate themselves to a higher
supernatural authority according to their own understanding of how expressing one's spirituality
should be undertaken And acknowledging that different and shared cultural groups of people allowed
for the establishment of male/female Societies that were also allowed to acknowledge and supplicate
themselves to a higher supernatural authority according to their own understanding of how expressing
one's spirituality should be undertaken. This clause needs to acknowledge this occurrence and state
that within the different and shared cultural groups where such activities have taken place but may
or may not have been recorded or noted within the historical record pertaining to Indian tribes and
people, consideration of such real occurrences must be given redress

Through the incorporation of the language written above in bold and italic Such wording as
has been provided for review empowers Indian tribes to demonstrate their right for self-determination
regarding what is or is not a sacred object And it empowers the Indian tribe to address within it's
own cultural reckoning, the diversity of spiritual expression of it's membership

(4)(e) What is cultural affiliation' - in using the term, "expert opinion." Expert opinion without
definition enables non-Indians to seek out, authorize, and utilize other non-Indians as experts who
can interpret tribal history and traditional cultural mores, activities, and spiritual beliefs of a people
to whom they have no shared ethnicity with The term must either be dropped from the clause, or,
it must be defined to state that expert opinion means Oral testimony of traditional tribal ciders of
the Indian tribe submitting the repatriation request.

Section 10.3 Intentional archeological excavations *

(b)( 1 ) Specific Requirements - regarding the sentence

Regarding private lands within the exterior boundaries of any Indian reservation, the
Bureau of Indian Affairs (BIA) will serve as the issuing agency for any permits
required under the Act.

It needs to be stated that Indian tribes as governments with the authority to regulate activities on their
reservations. Have the right to assume and/or replace the regulatory authority of the Bureau of Indian
Affairs if they so choose too do so. The applicable law for regulation of archeological excavations
undertaken within the exterior boundaries of a Indian reservation is tribal law.

Section 10.4 Inadvertent discoveries

This section as in Section 10.3 needs to state that within the boundaries of a Indian reservation the
applicable law regarding the regulation of managing inadvertent discoveries is tribal law.

Section 10.5 Consultation

237

(a)(1) Consulting parties - the term "aboriginal lands" in the sentence:

from Indian tribes on whose aboriginal lands the planned activity will occur or
where the inadvertent discovery has been made;

This sentence needs to be expanded to read aboriginal lands as defined by the oral history of the
tribe that claims occupation and/or interest in the territory where - the planned activity will occur
or where the inadvertent discovery has been made;

(a)(3) - this clause is ambiguous and it does not explain what demonstrates a cultural relationship As
written the clause is workable, however, unless the agent seeking tribal consultation has prior
knowledge of all of the Indian people who through their oral tradition claim occupancy or interest
in the lands where the discovery is made Indian tribes may not receive proper notice of discovery and
consultation inquiry

Section 10 6 Custody

(a)(2)(iii) - this clause does not empower Indian tribes to invoke "Oral History" as a method of
determining what is considered a Indian tribes aboriginal lands as they are defined by the oral history
of the tribe itself To address this clause and correct the oversight the following phrase needs
inclusion after, as the aboriginal land of an Indian tribe and/or where the Indian tribe has within
it's oral history, references where this territory was and is considered a part of it's aboriginal
lands:

Section 10 7 Disposition of unclaimed human remains, funerary objects, sacred objects, or objects
of cultural patrimony [Reserved]

It is inexcusable that this section of regulation has not been promulgated for review and comment
Regulations for this section need to be publicly proposed and commented upon by Indian tribes and
tribal participation in the development of this regulation must be mandated upon the federal agency
charged with drafting the proposal Tribal participation is defined as, Indian tribes help to "write" this
section and not just submit comments for review upon the proposed draft of the language.

Section 10.10 Repatriation

(c)(1) Exceptions - this clause as written does not specify that federal agencies and/or museums in
control of human remains, funerary objects, sacred objects, or objects of cultural patrimony, are
prohibited from automatically declaring that their entire collections are collections of "scientific
study" simply because they would desire to do so and thus prevent any repatriation from taking place
Secondly the clause does not mandate that the federal agencies and/or museums must "prove" to
Indian tribes that a scientific study is currently being conducted. It also does not state that a federal
agency and/or museum cannot begin a study simply to prevent repatriation from taking place. And
lastly, the clause does not address at all or even considers that Indian tribes and their members often

23-074 96-9

238

have strict spiritual taboo's that prohibit the scientific study of these items To address and correct
this oversight, language needs to be included where a federal agency and/or museum is mandated to
first request and receive tribal permission to conduct a scientific study on any item in their collection
since the enactment of this law.

Section 10. 1 1 Disposition of culturally unidentifiable human remains [Reserved]

It is inexcusable that this section of regulation has not been promulgated for review and comment as
well Regulations for this section need to be publicly proposed and commented upon by Indian tribes
and tribal participation in the development of this regulation must be mandated upon the federal
agency charged with drafting the proposal. Tribal participation is defined as, Indian tribes help to
"write" this section and not just submit comments for review upon the proposed draft of the language

Section 10.12 Civil penalties [Reserved!

Once more it is inexcusable that this section of regulation has not been promulgated for review and
comment as well. Regulations for this section need to be publicly proposed and commented upon by
Indian tribes and tribal participation in the development of this regulation must be mandated upon the
federal agency charged with drafting the proposal Tribal participation is defined as, Indian tribes help
to "write" this section and not just submit comments for review upon the proposed draft of the
language Secondly under this section, the rules for the levying of civil penalties for non-compliance
by a federal agency and/or museum with the law must be "strict" "harsh" and "immediate" No
federal agency and/or museum that is discovered to be in non-compliance with law cannot escape full
prosecution under the law

Section 10.13 Future applicability [Reserved)

Again, it is inexcusable that this section of regulation has not been promulgated for review and
comment. Regulations for this section need to be publicly proposed and commented upon by Indian
tribes and tribal participation in the development of this regulation must be mandated upon the federal
agency charged with drafting the proposal. Tribal participation is defined as, Indian tribes help to
"write" this section and not just submit comments for review upon the proposed draft of the language.

Section 10.14 Lineal descent and cultural affiliation

(b) Criteria for determining lineal descent - the applicable law in this criteria is tribal law, and only
tribal law. It must be specifically stated that all Indian tribes have the right, the responsibility, and the
duty to invoke their own legal definitions of determining kinship relationships for their cultural group.
As in Section 10.2, this clause as written does not "specify" nor "mandate" that the applicable legal
law to determine kinship regarding the demonstration of Native American descendance to a known
Native American individual should be the "tribal law" of the appropriate Indian tribe The phrase; or
by the common law system of descendance, is ambiguous and can be inferred to mean that federal
agencies and/or museums can "choose" to recognize or not recognize tribal law regarding traditional

239

kinship relationships as acknowledged and supported by the governing Indian tribe to which the lineal
descendant is a enrolled member thereof

(3)(e) Evidence - using the phrase "expert opinion" Expert opinion without definition enables non-
Indians to seek out, authorize, and utilize other non-Indians as experts who can interpret tribal history
and traditional cultural mores, activities, and spiritual beliefs of a people to whom they have no shared
ethnicity with The term must either be dropped from the clause, or, it must be defined to state that
expert opinion means: Oral testimony of traditional tribal elders of the Indian tribe submitting the
repatriation request

Section 10.15 repatriation limitations and remedies

(b) Failure to claim where no repatriation or disposition has occurred. [Reserved] - Once again we
reiterate that regulations for this section need to be publicly proposed and commented upon by Indian
tribes and tribal participation in the development of this regulation must be mandated upon the federal
agency charged with drafting the proposal Tribal participation is defined as, Indian tribes help to
"write" this section and not just submit comments for review upon the proposed draft of the language

- also in this section we see in the construction in the first sentence where the words repatriation or
disposition have been put together That it appears that disposition of human remains, funerary
objects, sacred objects, or objects of cultural patrimony has became a condition of repatriation and
this gives the impression that federal agencies and/or museums may legally refuse to repatriate such
items unless they have a say in determining how the disposition of such items are handled by the
Indian tribe This cannot be allowed to stand since disposition is solely within the provenance of the
Indian tribe to determine Another example of poor judgement in sentence construction can be found
in (d)( 1 )(ii) where it reads disposition of or control over, can be implied to mean that federal agencies
and/or museums can prevent repatriation unless they have a determining say in how such items will
be handled by the Indian tribe

Section 10 17 Dispute resolution

(a) Formal and informal resolutions - with regards to the phrase with respect to the repatriation and
disposition of, we once more point out that disposition as read within this sentence has become a
condition of repatriation and this gives the impression that federal agencies and/or museums may
legally refuse to repatriate such items unless they have a say in determining how the disposition of
such items are handled by the Indian tribe. This cannot be allowed to stand since disposition is solely
within the provenance of the Indian tribe to determine.

These are the comments submitted for the record by the Cheyenne River Sioux Tribe of Indians in
the State of South Dakota regarding the Final Rule 43 CFR Part 10, the Native American Graves
Protection and Repatriation Act.

240

jOHWOO*,.

Yankton SiowtTribe

Box 248

Marty. SD 57361
(605) 384-3804 / 384-3641
FAX (605) 384-5687

December 18, 1995

Senator John McCain, Chair
Senate Committee on Indian Affairs
Russell Senate Office Building
Washington, DC 20510

Dear Senator McCain

We write to express our concerns with the drafting of the Native American Graves Protection and
Repatriation Act (NAGPRA) Regulations as published in the Federal Register dated December 4,
1995 In addition we make three requests that we hope will serve to rectify the problems encountered
in the process

First, by the time tribes/bands receive notification or" newly proposed rules, and that we have
opportunity to comment, the deadline is nearly upoi us It leaves very little room for tribal
participation Thus, laws originally intended to protect the interests of tribes become shaped by the
comments of non-Indians In the case of NAGPRA, the museums/institutions holding Native
American remains and objects have shifted the Act to protect their interests in the December 4, Final
Rule (referenced above) As a result, tribes are now required to furnish more documentation and
proof for the return of items that clearly do not belong in institutions

Please consider extending the committee's December 20, 1995 deadline for further comment so that
more tribes/bands can be heard Secondly, we ask your committee to declare the present NAGPRA
Regulations, Final P.ule, to be invalid in order for tribes/bands to have adequate input in the drafting
of the final regulations Further, in the future, consider that tribes need to receive invitations for
comment with ample time to prepare and forward comments to the committee Thank you for your
time and attention

Sincerely,

oak

-«-dA—

Darrell E Drapeau, Chairman
Business and Claims Committee
Yankton Sioux Tribe

OFFICERS:

DARRELL DRAPEAU

BRIAN DRAPEAUX

ARTHUR STANDING CLOUD

GEORGE L. COURNOYER, SR.

(Business and Claims Committee J S T

MEMBERS:

AUDREY COOKE

WILLARD BRUGUIER

TONY FISCHER

ROBERT ■PETE' KEZENA

. MAXINE ROUSE

241

U.S. Department of Justice

'^T*' Office of Legislative Affairs

Office of the Assistant Attorney General Washington. DC 20530

January 30, 1996

The Honorable John McCain

Chairman, Senate Committee on Indian Affairs

United States Senate

Washington, DC 20510

Dear Mr. Chairman:

This responds to your letter of November 30, 1995,
concerning the Native American Graves Protection and Repatriation
Act (NAGPRA) . NAGPRA and the Archeological Resources Protection
Act (ARPA) provide the tools to deter destruction of burial sites
and archeological and cultural resources, resources which
constitute an irreplaceable part of our heritage. The protection
of historical and archaeological resources involves more than the
preservation of artifacts, burial sites, battlefields, and other
tangible items. These statutes protect the values, beliefs,
aspirations, religious practices, and identity of Indian peoples
and of this Nation. The Department of Justice is committed to
providing the resources and training necessary for vigorous
enforcement of NAGPRA and ARPA.

Your letter requests specific information regarding the
Department's policies, guidelines, training activities, and
prosecutions pursuant to the portion of NAGPRA codified as the
Illegal Trafficking in Native American Human Remains and Cultural
Items Act, 18 U.S.C. § 1170. I turn now to those questions.

1) What policies and guidelines have been issued within the
Department of Justice for the enforcement of 18 U.S.C. 1170,
Illegal Trafficking in Native American Human Remains and Cultural
Items Act?

Federal prosecution pursuant to 18 U.S.C. 1170, as well as
ARPA and other criminal provisions which can be used to prosecute
archeological resource violations, such as the theft of
government property statute, 18 U.S.C. 641, and the depredation
of government property statute, 18 U.S.C. 1361, is pursued by the
United States Attorneys' Offices. Legal assistance is provided
by attorneys of the Executive Office for U.S. Attorneys and the
Criminal Division of the Department, if such assistance is
requested.

242

A paramount interest of the Department of Justice is
ensuring that there are sufficient Assistant United States
Attorneys located throughout the country who are versed in the
various technical requirements of NAGPRA and other statutes
designed to protect burial sites and cultural resources. To this
end, the Criminal Division, in conjunction with the Department of
the Interior's Archeological Assistance Division and other
members of the Federal Interagency Archeological Protection
Working Group, have prepared a two-volume publication entitled
"Archeological Resources Protection: Federal Prosecution
Sourcebook . "

The Sourcebook has been distributed to all 94 United States
Attorneys Offices. In addition, the Archeological Assistance
Division has distributed the Sourcebook to a wide variety of
agency attorneys, land managers, archaeologists, criminal
investigators, and Indian tribal leaders. This Sourcebook, which
is supplemented periodically, is a valuable training tool which
educates its users and promotes NAGPRA and ARPA prosecutions.

In addition the Department co-sponsors, in association with
the Archeological Assistance Division, an annual conference
entitled an "Overview of Archeological Protection Law. " This
conference has provided intensive training to numerous Assistant
United States Attorneys in addition to a number of agency
personnel and other individuals involved in the preservation of
our rich archeological heritage.

While the Department has issued no formal policies or
guidelines, the Sourcebook contains some materials relating to
the enforcement of 18 U.S.C 1170.

2) What is the approximate number of reports received and
investigations made of alleged violations of 18 U.S.C. 1170?

Historically, almost all criminal ARPA and NAGPRA offenses
have been investigated by agents and archaeologists employed by
the federal agency which has responsibility over the land on
which the unlawful excavation and removal occurred, with the
Federal Bureau of Investigation being called in to assist, if
requested, where no federal land managing agency has
jurisdiction. The Department does not maintain comprehensive
records of the number of investigations under 18 U.S.C. 1170 by
other federal agencies.

Following investigation and referral to the Department,
further investigation and federal prosecutior is pursued by the
United States Attorneys' Offices, with legal assistance provided,
if requested, by attorneys of the Criminal Division of the
Department of Justice. Since the enactment of NAGPRA in November
1990, the Department has received criminal referrals identifying

243

46 suspects with possible violation of 18 U.S.C. 1170. Criminal
charges were brought against 13 of the suspects. Ten of the
suspects are still under investigation. The referrals against
the 23 remaining suspects were closed for one of the following
reasons: lack of evidence or criminal intent; weak or
insufficient evidence; suspect to be prosecuted by another
authority; no federal offense committed; completion of pre-trial
diversion; suspect cooperation; and guilty plea entered in
Magistrate Court .

3) What is the approximate number and disposition of pending and
completed cases charged under section 1170 of title 18?

Since the enactment of NAGPRA in November 1990, criminal
charges have been filed against 13 defendants. There has been a
final disposition of nine of these defendants. Six of the
defendants entered guilty pleas, two were dismissed without
prejudice, and one dismissed with prejudice. Cases filed against
four defendants are still pending in federal district court.

If the Department can be of further assistance, do not
hesitate to contact my office.

Assistant Attorney General

CC: The Honorable Daniel Inouye, Vice Chair

' All numbers contained in this letter are based on Department
records as of September 30, 1995.

244

SMITHSONIAN INSTITUTION
Washington, D.C. 20560

rsA

January 26, 1996

Honorable John McCain

Chairman

Select Committee on Indian Affairs

United States Senate

Washington, D.C. 20510

Dear Mr. Chairman:

As a follow up to your Oversight hearing on the Native
American Graves Protection and Repatriation Act (NAGPRA) and
preliminary discussions with the Committee staff, I would like to
submit some materials for the record.

Enclosed you will find the National Museum of the American
Indian Repatriation Policy and the National Museum of Natural
History Repatriation Guidelines, both of which establish that the
Smithsonian is complying with the spirit of NAGPRA in virtually
every respect .

The National Museum of the American Indian has prepared and
distributed the combined summaries and inventories of the entire
collection to all federally recognized tribes. The first mailing
was completed in November, 1993, and the inventories were
supplemented in November, 1995 through an additional mailing.
Extensive repatriation activity has been taking place also, as
you can see from the information submitted with this letter.

The National Museum of Natural History (NMNH), has adopted
the categories of objects eligible for repatriation and certain
procedures and definitions contained under NAGPRA. In addition,
the Repatriation Office is complying fully with the National
Museum of the American Indian Act and is working on a substantial
repatriation caseload. With respect to many of these cases,
tribes have been given timetables for completion of their
respective requests .

Due to the significant volume of pending repatriation
requests, the staff of the Repatriation Office has devoted its
resources to completing these cases and repatriating eligible
materials. These cases are extremely time-consuming, and we are
providing you with a sample case report, which illustrates the
time, effort, and research involved with each repatriation
request.

245

Senator McCain
Page two

Moreover, because the National Museum of the American Indian
Act deals specifically with repatriation and does not prescribe
deadlines for the completion of an inventory, the Museum's
priority has been on the former and not the latter. Although the
Smithsonian understands the importance of completing an inventory
and is preparing a timetable and budget plan to submit for the
Committee's consideration, it is important to note the
difficulties posed by limited resources of maintaining current
agreements and timelines with tribal repatriation reguests while
concurrently completing an accurate inventory. We are committed
to accomplishing both and look forward to working with you on
preparing the most responsible and feasible approach. I will be
back to you shortly with a schedule for completion of the
inventory and a budget plan within existing resources.

Finally, I am enclosing a letter from the National Museum of
Natural History which clarifies some misconceptions presented by
outside witnesses about the Smithsonian and its collections. I
hope this information will be helpful as the Committee
deliberates on the implementation of the NAGPRA Act. We are
ready and willing to offer any additional assistance that you may
reguest on this subject.

Sincerely,

I . Michael He&7P.an
Secretary

Enclosures

246

*****

NATIONAL MUSEUM of
NATURAL HISTORY

SMITHSONIAN INSTITUTION

January 22, 1996

Honorable John McCain

Chairman

Select Committee on Indian Affairs

United States Senate

Washington, DC. 20510

Dear Senator McCain,

This letter provides additional comments for the record on the repatriation program at the
National Museum of Natural History (NMNH). These comments follow up on testimony given
during the recent oversight hearing for the Native American Graves Protection and Repatriation
Act (NAGPRA) held by the Select Committee on Indian Affairs. Unfortunately, the Smithsonian
was not included in the witness list and therefore did not have the opportunity to provide
information or expound upon the many accomplishments the Natural History Museum has made
in the area of repatriation. I feel it is important to make the Committee aware of our efforts in
repatriation under the National Museum of the American Indian (NMAI) Act. I would like to
temper comments made at the hearing with information on our activities and accomplishments to
date.

Since 1991 the NMNH has provided approximately 150 Native American and Native
Alaskan groups with unverified skeletal and object inventories either requested by those groups or
distributed to them as part of on-going case work and consultation. The term unverified indicates
that we have not yet completed a definitive search of our records and collections to determine the
accuracy of readily available catalog information. The unverified inventories provide a starting
place for further consultation, documentation, and collaboration with the tribes as the repatriation
process moves forward. In the case of Alaska, for example, all of the Regional Native
Corporations and many of the Village Native Corporations and IRA Councils have been provided
with inventories of materials related to their areas. With inventory notification essentially
complete, our case work in Alaska is presently focusing on returns, collaborative documentation,
and further consultation and negotiation. Significant headway has been made with the distribution
of unverified inventories in the Plains and the Northwest regions of the country. The Repatriation
Office also is accelerating its efforts to complete similar coverage for Native groups in the
Northeast, the Southeast, the Southwest regions of the country.

' I l> I . \ I I l> TO UNDERSTANDING I M I NATURAL WORLD AND OUR PLACE IN 11

WASH INI, I ON IX J0560

247

Page 2

More than 30 verified inventories also have been completed and distributed to Native
groups in Alaska and the lower 48 states as part of the next step in the repatriation process. The
verified inventory is a final, definitive report for groups that have submitted official repatriation
requests. The report identifies all remains and funerary objects eligible for repatriation and makes
recommendations for actual returns. I am submitting for your review a recent inventory report on
the Apache and Yavapai Tribes of Arizona which is typical of the verified inventory reports we
are producing. The verified inventories represent completed repatriation cases which have
resulted in the return of approximately 1500 individuals to date Another 1000 sets of remains
also have been identified for return in the verified inventory process and are now awaiting
repatriation. In sum, more than 30% of the Native groups eligible for repatriation in the United
States have been provided with basic inventory data thus far.

It is particularly important to note that our repatriation efforts over the last four years
have not focused exclusively on inventory and notification. Equally important to the repatriation
initiative at Natural History has been a serious effort to engage in case work, complete a large
number of returns, address long-standing repatriation requests, and carry out substantive
consultations on repatriation with as many affected groups as possible. A considerable amount of
time and staff effort have been expended on completing pending requests from Native groups,
many of which include particularly sensitive remains recovered during the 19th and 20th centuries
A total of 80 requests have been received so far and in-depth consultations have been completed
with most of these groups. The thirty cases completed to date have resulted in the return of both
skeletal remains and funerary objects. Requests have been engaged on a first come, first serve
basis and a concerted effort has been made to clear the large number of cases with remains which
are closely related (genealogically) to living people. Many of these cases have included remains in
the Army Medical Museum collections (remains dating primarily from military actions in the latter
half of the 19th century) and those that date from late prehistoric and early historic archaeological
sites.

Policy and guidelines for repatriation at the NMNH have been widely disseminated as part
of our effort to provide information about the laws and process of repatriation We have mailed
our policy and guidelines statement to all federally recognized tribes as well as a large number
non-federally recognized Native groups (copy of guidelines attached). In addition, we have
carried out several workshops on repatriation for Native representatives in collaboration with the
National Museum of the American Indian, the Keepers of the Treasures, the NMAI and
NAGPRA Review Committees, and the National Park Service as well as local tribal councils and
cultural organizations (sample agenda and registration for the Mille Lacs, Minnesota workshop
attached). Repatriation staff at Natural History have made numerous presentations at a variety of
national fora including the NMAI consultations, the Keepers of the Treasures meetings (both
regional and national, Warm Springs Annual Meeting agenda attached), archaeological,
anthropological, and museum conferences, as well as the NAGPRA Review Committee hearings
(in Albany, Los Angeles, etc. [agenda attached]). We have also presented information on the size
and character of our collections as well as our policies, procedures, and completed repatriations
to regional Native organizations such as the Elders conferences at Point Barrow (agenda
attached), Point Hope, and Nome, Alaska, the Apache Summit in Albuquerque, New Mexico,
among others. We have collaborated on regional consultations with the Park Service and a

248

number of private museums (see attached agendas for Southeast Archaeological Center and
Peabody Museum Tribal Consultation) in order to move our case work forward in coordination
with other federal agencies and museums. We also have entered into cooperative agreements
with a number of federal agencies in order to coordinate documentation efforts whenever possible
(see attached example of MOU with the Bureau of Reclamation) and to reduce the total number
of agencies with which tribal groups are required to interact. Many other consultation and
outreach activities completed by the Repatriation Office at the NMNH, in addition to regular case
work, are described in our Annual Reports for the last three years also included here for your
review.

Clearly, both our strength and our focus to date has been to act on pending requests, to
complete returns, and to carry out individual consultations with a large number of Native groups.
It is difficult to give an accurate picture of the amount of time spent by our Repatriation Office
staff on consultation with both Native groups and other institutions and organizations. Native
delegations visiting Washington on business unrelated to repatriation regularly stop by our Office
to ask about repatriation and to see objects or remains related to their tribe. Unannounced as well
as scheduled visits are time consuming and frequently take staff away from planned repatriation
tasks. Staff also frequently consult with museum professionals seeking information on
repatriation procedures and other issues. We consider all of these activities to be necessary
concomitants of the Museum's responsibility as a national leader on the repatriation mandate.

As part of its overall plan the repatriation program has emphasized case work with the
understanding that completed cases represent a final response to the inventory and consultation
mandate set out in the NMAI Act. Individual cases always present their own special problems
and inevitably become more complicated and protracted than originally envisioned. The Pawnee
repatriation request is a case in point. Consultation, negotiation and resolution of the Pawnee
request for the return of skeletal remains from Kansas and Nebraska, dating back to the first
millennium AD, have taken almost four years. In the process, however, this case has set
precedents for the treatment of unidentified skeletal remains and also has demonstrated the
effectiveness of our Review Committee at facilitating the resolution of disputes and protecting the
interests of Native claimants in the repatriation process. I have included reports, correspondence,
and the final judgement of the Review Committee in the Pawnee case as part of our statement for
the record.

The repatriation effort at the NMNH also has attempted to shoulder some of the research
and financial burdens that repatriation inevitably represents for the tribes. Unfortunately,
appropriations to support the tribal half of the NMAI repatriation effort have never materialized.
Tribal consultation and research on repatriation requires time, expertise, and money. The
repatriation program has sought to address this problem in a number of different ways. First, we
seek to contract with Native scholars and experts on repatriation documentation whenever
possible. To date, we have contracted with six Native experts to complete documentation on
cases unrelated to their own tribal affiliation totaling almost $150,000. This kind of Native
American participation in the repatriation process represents a positive approach to greater Native
American involvement in the future of the Museum and a long-term remedy to the problems the
legislation originally sought to redress.

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Page 4

We also support travel, lodging, and training of community scholars, Native interns, and
official Native representatives to the Smithsonian and to conference and research locations in the
field out of our own operating budget. All of this support is related to on-going repatriation cases
and requires significant staff involvement. Community scholars come to Natural History for up to
a month of sponsored research and work directly in collaboration with repatriation staff on their
own cases Native student interns spend a minimum of three months working in the Repatriation
Office, learning research and collections management skills, and participating in the preparations
for returns. We also arrange for and fund the travel of Native representatives to Washington, DC
to recover remains and objects and prepare them, often ceremonially, for transport home. We
have coordinated with other museums in the organization of joint repatriations held here in the
capital in order to simplify the repatriation process for the tribes. In the case of the Pawnee
repatriation we worked closely with the U.S. military to cover all of the arrangements for the
return of 19th century Pawnee combat veterans to a final burial location in Kansas. Packing,
transportation arrangements, and costs for all of the remains returned to date have been covered
by the Repatriation Office at NMNH.

Recently the Repatriation Review Committee also has begun to make some of their funds
available to tribes for repatriation consultation and research. Native representatives come to the
Museum for the purpose of talking about the repatriation process and seeing objects and human
remains in the collections that derive from their tribe. Travel and lodging for Native repatriation
representatives comes through a grant program evaluated by senior Repatriation Office staff and
targeted at some of the larger official requests. We estimate total funding directed to supporting
the Native side of repatriation cases at NMNH, excluding the Review Committee grants, to be on
the order of about $250,000. This figure is difficult to calculate, especially in terms of the
considerable amount of staff time invested, but should be viewed as a minimal estimate. Without
a doubt, the financial costs and the amount of time spent by repatriation staff on DC
consultations, other visitor-related activities, and returns is significant, but considering the long-
term benefit to both the Museum and Native groups, the potential benificial outcome more than
balances the investment.

As an example of such a long-term investment, the Repatriation Office has begun to
investigate technological solutions to the problems and costs of repatriation consultation and
information exchange with Native groups. Object consultation requires face to face discussions
and on-site examination of artifacts by Native experts and traditional religious leaders. Long-
distance travel to Washington DC, however, is sometimes impossible for large groups or for
elders. To address this problem, the Repatriation Office at NMNH organized an object
consultation conducted by video hookup with Tlingit and Haida groups in Juneau, Alaska. All of
the funding for the video conference was provided by outside sources, except for staff time
invested in this project by the Department of Anthropology and the Repatriation Office at
NMNH The project, judged to be a success by all involved, represents one way that the NMNH
is attempting to find creative solutions to the challenges represented by repatriation. Sharing
information through the distribution of conventional inventory lists often represents just more
bureaucratic red tape to the tribes. Reams of paper do little to help them identify sacred and
patrimonial objects of real concern to traditional people. The video object consultation (short

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note in Federal Archaeology on the conference attached) represents one way we have
collaborated with Native groups to seek more effective and meaningful approaches to both
communication and repatriation.

In conclusion, I hope that the information provided here creates a clearer picture of the
repatriation program at Natural History. I have tied to put the work we do, the time and effort
expended, and our accomplishments thus far in context with the general issue of compliance with
NAGPRA. The bottom line is that we feel we are responding aggressively to the repatriation
mandate The most important difference between repatriation at NMNH and at other museums
responding to the repatriation mandate are the deadlines for summaries and inventories stipulated
in NAGPRA. Many of the larger museums have requested extensions in order to comply with the
inventory requirement. We believe that Natural History has an important responsibility to act as a
national leader in repatriation and to balance our inventory responsibilities with meaningful
consultations and actual returns. We take these responsibilities very seriously. This approach is
certainly time consuming but we believe it also holds the potential to speed the overall course of
repatriation and its final resolution. Presently, we are providing both inventories and summaries.
We are also making a concerted effort to complete a large number of repatriations and to carry
out an extensive program of consultation, outreach, and training with Native groups. We want to
work with your Committee to resolve the NAGPRA compliance issue and continue the successful
process of repatriation here at the Museum. In this spirit, I invite the members of the Committee
and their staff to come to the Museum and see first hand the work we are doing in repatriation.
Please contact me in the Department of Anthropology at NMNH or Dr. Thomas W. Killion,
Program Manager in the Repatriation Office should the Committee require any additional
information on repatriation or related issues at the Museum.

Sincerely,

Dr. Dennis Stanford, Chai^
Department of i'withropology, NMNH
Smithsonian Institution

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National Museum of the American Indian

Smithsonian Institution

Repatriation Office

In accordance with the Native American Graves Protection and
Repatriation Act (NAGPRA) , the Repatriation Office has submitted
the combined summaries and inventories of the NMAI collection to
all Federally recognized tribes. The first mass mailing (sent to
743 tribes) was completed in November 1993. The second mailing
(sent to 761 tribes) , consisting of 5054 new entries in the NMAI
database, was completed later than the legislated date of November
16, 1995 due to the government furlough. This mailing was completed
on November 29, 1995.

According to Tim McKeown, the NAGPRA representative for the
National Park Service, NMAI has surpassed the summary requirements
of the first mailing. The requirement was to write a brief letter
describing to tribes the percentage of items in the museum
collection that originates from their tribe. However, NMAI sent to
each Federally recognized tribe a detailed inventory of every item
in the collection (approximately 1 million objects) , that
originates or may originate from that tribe (see Lee Callander's
letter for an example) .

According to the National Park Service, NMAI has also complied
"in the spirit of the law" with the inventory requirement of NAGPRA
by sending the above description. We have not, however, complied to
the "letter of the law" regarding the timing of the consultation
visits with tribes. According to the legislation, tribes were to be
consulted about the contents of the NMAI collection before the
inventories were sent out. There are two reasons this was not
accomplished: 1) The NMAI collection is too large and covers too
broad an area to have begun a verbal dialogue with every tribe in
the two years between sending the summaries/ inventories and
November 16, 1995. 2) tribes have not been ready to begin a
dialogue. In order to try to comply "in good faith", NMAI has
invited any tribal delegates that would like to view the collection
to come for a visit. To date, the majority of the tribes have not
pursued this.

NMAI has tried to make repatriation consultation visits
readily available (see the Repatriation Annual Report 1995, p. 5) .
Tribes have received written letters inviting them to come to the
Research Branch, follow up calls have been made and NMAI/NMNH
Repatriation Workshops have been conducted throughout the United
States. NMAI also offers to pay for one round trip airfare to the
museum for one tribal delegate to view the collection.

NMAI is trying to go beyond the boundaries of NAGPRA in taking
the initiative of researching cultural affiliation and repatriation

252

of all human remains in the NMAI collection. The Repatriation
Office has received $170,000 of Trust money to hire contractors to
research the cultural affiliation of human remains. Once a research
report is complete NMAI approaches the appropriate Native
community, asking them to take their remains back for reburial . The
Repatriation Office pays for all research and the return of the
remain (s), but not for reburial.

The human remains in the NMAI collection are what were
considered "curiosities" that Heye kept when the majority of the
Physical Anthropology collection was transferred over to the New
York University School of Dentistry in the 1940s. What remains in
the collection are fragmented bones with abnormalities or unusual
circumstances, such as: vertebrae pierced with arrow points, skulls
with deformities caused by disease, disjointed arm bones with
bracelets still attached and mummies from the Archaic periods in
the Southwest . The human remains in this collection have historic
value, but are not what any scientist would call a "working
collection" . No physical testing has been or ever will be carried
out on any human remains in the NMAI collection.

253

SUMMARY OF NATIONAL MUSEUM OF THE AMERICAN INDIAN
POI ICY STATEMENT ON NATIVE AMERICAN HUMAN REMAINS AND CULTURAL MATERIALS.
ADOPTFD BY THE BOARD OF TRUSTEES ON MARCH 4, 1991

I. PREAMBLE

This section gives background on the establishment of the National
Museum of the American Indian through Public Law 101-185, which provided for
the transfer to the Smithsonian Institution of the assets of the Museum of
the American Indian, Heye Foundation in New York. It describes the sole
authority of the National Museum of the American Indian board of trustees,
subject to the general authority of the Smithsonian's board of regents, to
lend, exchange, sell or otherwise dispose of any part of the collections of
the museum.

The preamble notes that this pol icy appl ies to the repatriation of
Native American human remains and funerary objects; repatriation of objects
of religious, ceremonial and historical importance to Native American people;
communally owned tribal property and other property acquired by or
transferred to the museum illegally; and the treatment and display of Native
American materials,.,. -..,. ( •*•!■,» ;- y • ■-. ■ • ■ .'

One of the museum's highest priorities is the expeditious implementation
of its repatriation policy. It further establishes the general goals of the
museum and notes that, the wishes of Native Americans must be respected with
regard to human remains and funerary objects and access to and treatment of
ceremonial and religious materials. It also states that all: Native American
materials, which have been determined to be subject to repatriation, must be
treated as the sole property of {.hei affected Native American culturally
affiliated group and must be treated with the utmost respect by scholars and
interpreters of those cultures. ■, ■:,-

II. BACKGROUND

This section explains that the new policy extends the principles set
forth in Public Law 101-185 with respect to repatriation of human remains and
associated funerary objects to other categories of Native American objects--
ceremonial and religious materials and communally owned Native property. It
also notes that each repatriation request carries with it unique facts,
circumstances and legal and ethical cons : iderations.

III. POLICY

This section describes in detail the policy considerations with respect
to each of six categories: Human Remains, Funerary Objects, Communally Owned
Native American Property, Ceremonial and Religious Objects, Objects Acquired
Illegally, and Duplicate or Abundant Objects. A brief summary of the main
point of each category is summarized below:

Human Remains --On request of living descendants of the individual or the
tribe or organization, the museum will repatriate any human remains that are
reasonably identified as being those of a particular individual or of an

254

individual culturally affiliated with a particular American Indian tribe or
Native American organization.

Funerary Obiects --The museum will repatriate any funerary objects associated
with human remains, including any funerary object that is a surrogate for a
deceased person. In addition, on request, the museum will repatriate to a
particular American Indian tribe or Native Hawaiian organization any funerary
object that 1s not associated with human remains but that is reasonably
identified as having been removed from a specific burial site or culturally
affiliated with that tribe or organization. Also, the museum will repatriate
any other funerary objects found to have been acquired by or transferred to
the museum illegally or under circumstances that render invalid its claims to
them.

Communally Owned Native American Property - -Communally owned property that
belongs to an entire tribe, organization or group or was held for communal
purposes and could not have been legally transferred or conveyed by any
individual Native American to the museum will be repatriated on request.

Ceremonial and Religious Objects —This category includes objects needed by
Native American religious leaders for the practice of traditional Native
American religions. Because of the wide variety of objects regarded as
ceremonial and religious, each request will be considered on a case-by-case
basis in consultation with Native religious leaders in keeping with the
American Indian Religious Freedom Act.

Objects Acquired meqa11y --0n request, the museum will repatriate to the
appropriate American Indian tribe, Native Hawaiian organization or Native
American group any materials acquired or transferred to the museum illegally
or under circumstances that rendered the museum's claim invalid. Each
request will be on a case-by-case basis.

Duplicate or Abundant Obiects --The museum will consider requests for
repatriation of duplicate or abundant items held in the museum's collections
from Native Americans, American Indian tribes, Native Hawaiian organizations
or Native American groups culturally affiliated with the material.

IV. PROCEDURES

This section notes that all repatriation decisions will be made by the
museum's board of trustees on advice of its collections committee and
describes a procedure for carrying out an inventory and for consulting with
Native Americans during the repatriation process. Claims for materials may
be submitted by descendants and by those who can demonstrate a cultural
affiliation to the materials. This group of claimants includes, but is not
limited to Native tribal, religious, ceremonial and Hawaiian organizational
leaders. This section notes that the initial burden of proof with respect to
any repatriation request is on the requestor to establish connection to the
material in question.

The procedures section also describes the special review committee that
will make recommendations about claims in dispute. This section further
notes that certain items in the museum's collections are needed by

255

traditional Native American religious leaders for the practice of Native
American religions. The museum is committed to a policy of repatriation of
these and other cultural materials. Where repatriation is not requested or
where a repatriation agreement is not reached, the museum is committed to a
policy of shared access and use of these materials as culturally appropriate.
The museum will also offer technical assistance in the care, preservation,
use and disposition of materials repatriated to tribes and organizations.

V. TREATMENT, CARE AND EXHIBITION

This section notes that the museum will develop and adopt a collections
management policy describing detailed procedures for accession, deaccession,
gifts, exhibition, display, handling, access and many other aspects of
collections management. That policy will respect and accommodate the
cultural and religious sensitivities surrounding the museum's collections.
The museum will develop its detailed collections procedures in accordance
with the policy that culturally specific information, data, documentation,
reproductions and depictions--whether contained or transmitted in written,
audio, visual or computer form--are the sole property of the affiliated
group, and its consent regarding treatment, care and exhibition of its
cultural materials must be obtained prior to decisions being made.

This section has five subsections relating to Exhibition and Display,
Curation, Access, Outreach and Acquisitions. A summary of the main points of
this section follows:

Exhibition and Displav --Re1 jgious and ceremonial objects shall be exhibited
or displayed only with the consent of the culturally affiliated group.

Curation --Curat1on and care of cultural materials will be carried out using
the highest standards of museum practice and in consultation with the views
of appropriate representatives from culturally affiliated groups.

Access --Access to the collections for viewing, study, performance of
ceremonies and for other purposes of Native American people will be allowed
to the maximum extent. Facilities will be constructed within the museum and/
or under its auspices as appropriate for the purpose of conducting
ceremonies. Public access to the collections for research, study or viewing
purposes may be restricted if such access offends the religious or cultural
practices of Native American peoples.

Outreach- -Loans and exchange of cultural materials and traveling exhibitions
will make the collections more widely available to Indian communities. The
museum expresses its commitment to training of Native Americans and use of
telecommunications and other technology to make its collections and
activities more widely available.

Acguisitions --Title to all objects acquired for the permanent collections
shall be obtained free and clear. This section describes the principles to
be followed in acquiring objects for the collections.

SI-121A-91

a a tt

256

National Museum of the American Indian Policy Statement
on Native American Human Remains and Cultural Materials

I. PREAMBLE

In November 1989, the National Museum of the American Indian
Act became law. Public Law 101-185 provided for the transfer to
the Smithsonian Institution of title to the assets of the Museum
of the American Indian, Heye Foundation. The National Museum of
the American Indian (hereinafter "Museum") , established by the
Act, has a Board of Trustees which, subject to the general
policies of the Smithsonian Board of Regents, has the sole
authority to lend, exchange, sell, or otherwise dispose of any
part of the collections of the Museum; purchase, accept, borrow,
or otherwise acquire artifacts and other objects for addition to
the collections of the Museum; and to specify criteria for use of
the collections of the Museum for appropriate purposes, including
research, evaluation, education, and method of display. Integral
to fulfillment of that mandate is the affirmation that:

*■ Native American cultures and the collections that reflect
those American Indian, Alaska Native and Native Hawaiian cultures
provide a context for and constitute a rich part of the
activities of the Museum.

* The goal of the Museum's repatriation policy is to
support the continuation of ceremonial and ritual life among
Native American peoples, to foster and support the study by
Native Americans of their own traditions, and to forge consensus
among the Museum and Native American communities while accounting
for and balancing the interests of each.

* The wishes of Native American peoples with respect to the
human remains and funerary objects of their own ancestors must be
honored.

* The wishes of Native American peoples with respect to
access to and treatment and use of ceremonial and religious
materials needed in the practice of their religion must be
granted.

* The Native American community must have broad access to
and use of information pertaining to collection materials to
ensure that informed decisions can be made regarding the
treatment and disposition of Native American materials.

* All Native American materials, including human remains,
funerary objects, ceremonial and religious objects, and
communally-owned property, together with all culturally-specific
information, must be treated as the sole property of the affected

257

Native American culturally-affiliated group and with the utmost
respect by scholars and interpreters of those cultures, whether
in collections research, scientific study, exhibitions, or
educational programs.

* Respect for Native American peoples and cultures and
principles of law prohibit the retention of Native American
materials that were acquired by or transferred to the National
Museum of the American Indian illegally or under circumstances
that invalidate the Museum's claim to them.

* The Museum has, as one of its highest priorities, the
expeditious implementation of its repatriation policy. To carry
out this policy, there must be continuous dialogue between the
Museum and Native peoples to assure that all viewpoints and
beliefs are considered in its implementation.

* With respect to Native American peoples beyond the
borders of the United States, this policy shall be carried out in
accordance with the following procedures and applicable treaties
and international agreements.

This statement describes the National Museum of the American
Indian policy and procedure for: (l) the repatriation of Native
American human remains and funerary objects; (2) the repatriation
of objects of religious, ceremonial, and historical importance to
Native American peoples, communally-owned tribal property, and
other property acquired by or transferred to the Museum
illegally; and (3) the treatment and display of Native American
materials.

II. BACKGROUND

Over the years, a set of principles has evolved within
federal policy regarding Native American religious freedom and
the treatment and the repatriation of cultural materials.
Certain of those principles, pertaining to human remains and
funerary objects, were codified into law by Public Law 101-185.
The National Museum of the American Indian is committed to a
policy that extends the principles of the law to other categories
of Native American objects, namely, ceremonial and religious
materials and communally-owned Native property.

The initial focus of all repatriation requests involves the
nature of the material in question and the circumstances of its
acquisition by the Museum. Each repatriation request carries
with it unique facts, circumstances, and legal and ethical
considerations. Thus, each request of necessity must be reviewed
individually within the Museum's overall policy framework.

III. POLICY

The National Museum of the American Indian is committed to
the disposition, in accordance with the wishes of culturally-
based Native Americans, of (i) Native American human remains of

258

known individuals; (ii) human remains of individuals who can be
identified by tribal or cultural affiliation with contemporary
Native peoples; (iii) funerary objects; (iv) communally-owned
Native property; (v) ceremonial and religious objects; and (vi)
objects transferred to or acquired by, or hereafter transferred
or acquired by, the Museum illegally or under circumstances that
render invalid the Museum's claim to them. Considerations
associated with each type of material follow.

A. Human remains . The Museum will repatriate any human
remains that are reasonably identified as being those of a
particular individual or of an individual culturally affiliated
with a particular American Indian tribe or Native Hawaiian
organization, upon request of living descendants of the
individual or of the particular tribe or organization. In
addition, the Museum will repatriate to an appropriate
descendant, tribe, or organization, upon request, any other
Native American remains found to have been transferred to the
Museum or otherwise acquired by the Museum illegally or under
circumstances that render invalid its claim to them. Remains
excavated pursuant to lawfully— issued permits under the
Antiquities Act of 1906 will be deemed to have been acquired
under color of law, but will be subject to repatriation if
individually or tribally identifiable.

B. Funerary objects . The Museum will repatriate any
funerary objects associated with human remains, to be repatriated
in accordance, with paragraph A above, including any funerary
object which is a surrogate for a deceased person. With respect
to funerary objects not associated with human remains, with the
exception of surrogates addressed above, the Museum will
repatriate to a particular American Indian tribe or Native
Hawaiian organization, upon request, any funerary object that is
reasonably identified as having been removed from a specific
burial site or culturally affiliated with that tribe or
organization. In addition, the Museum will repatriate any other
funerary objects found to have been acquired by or transferred to
the Museum illegally or under circumstances that render invalid
its claim to them.

C. Communally-owned Native American property . The Museum
recognizes that it holds in its collections certain objects that
are communally-owned property of an American Indian tribe. Native
Hawaiian organization, or Native American group itself, rather
than property owned by an individual Native American person. If
such property belonged to the entire tribe, organization, or
group, or was held for communal purposes and could not have been
legally alienated, transferred, or conveyed by any individual
Native American, the Museum's claim to it is invalid, and such
items will be repatriated upon request according to procedures
established herein.

D. Ceremonial and Religious Objects . This category of
materials consists of objects that are needed by Native American
religious leaders for the practice of traditional Native American

259

religions, including the purpose of ceremonial renewal. Because
objects regarded as ceremonial and religious by any given tribe
may vary substantially from the objects so regarded by other
tribes, this category of objects does not lend itself to a fixed
set of guidelines. Thus, in keeping with the American Indian
Religious Freedom Act, each request must be considered on a
case-by-case basis in consultation with Kative traditional
religious leaders and practitioners. The Museum will seek the
counsel of other tribal elders, members of the governing bodies
and other representatives of the tribe making the request, and
any other individuals who can provide relevant information to the
specific request at hand.

E. Objects acquired illegally . The Museum will repatriate
upon request to an appropriate American Indian tribe, Native
Hawaiian organization, or Native American group any materials
acquired by or transferred to the Museum illegally or under
circumstances that render invalid the Museum's claim to them.
Each request for materials so acquired will be considered on a
case-by-case basis and take into account all relevant evidence
submitted by the particular tribe, organization, or group and
available to the Museum.

F. Duplicate or Abundant Objects . When the Museum has
duplicate material, numerous similar objects in its collection,
or an abundance of a certain type of material, arid a Native
American, American Indian tribe. Native Hawaiian organization, or
Native American group that is culturally affiliated with the
material requests its repatriation, the Museum will consider
disposition.

IV. PROCEDORES

All repatriation decisions are made by the Museum Board of
Trustees upon advice of the Collections Committee.

A. Inventory . The policy outlined above requires the
Museum to have in place efficient procedural mechanisms to
respond to repatriation requests. The National Museum of the
American Indian will prepare an inventory of religious and
ceremonial objects, funerary items, and all other cultural
materials covered by this policy. The steps of such inventories
are as follows:

1. Using the best available scientific and
historical information, the Museum will
identify the origin of human remains,
funerary objects, and other objects covered
by this policy.

2. Identification will be based on a
reasonable belief standard.

260

3. The inventories will be made available to
all affected American Indian tribes and
Hawaiian Native organizations at the earliest
opportunity .

4. The Museum will include in its
inventories items that are not positively
identifiable as being associated with a
particular American Indian tribe or Native
Hawaiian organization but, given the totality
of information about the materials, make it
more likely than not that the item once
belonged to that American Indian tribe or
Native Hawaiian organization or that the
human remains are culturally affiliated with
that group.

B. consultation . During the inventory process and
following its completion, the Museum will consult widely with
Native American peoples. The Museum will disclose all relevant
information pertaining to collection objects identified in the
inventories, and curatorial staff will be available to respond to
additional requests for information. Physical access to
materials will be provided, as requested. In addition, a special
area will be made available for Native American people to view or
otherwise inspect their culturally affiliated materials. Every
effort will be made to reach agreement through informal
consultation and cooperation. Where issues remain after good
faith discussions, those pertaining to human remains, funerary
objects and other objects covered by this policy will be referred
to a Special Review Committee established by the Board of
Trustees.

C. Claimants . Claims for materials may be submitted by
descendants and by those who can demonstrate a cultural
affiliation to the materials. This group of claimants includes,
but is not limited to Native tribal, religious, ceremonial and
Hawaiian organizational leaders. If the Museum is uncertain
about the cultural affiliation of the party requesting the
materials, the Museum may request information about affiliation.
If a request is made by one Native American group for the return
of materials that the Museum believes may be more closely
affiliated with another Native American group, the Museum will
advise both parties of the request. All parties with a
demonstrable interest will be invited to join in the negotiation
and decision-making process. Where competing claims exist that
cannot be resolved through informal consultation, the parties
will submit the dispute to the Board of Trustees.

D. Burden of Proof . The initial burden of proof with
respect to any repatriation request shall be on the requesting
individual or tribe to establish, on a reasonable basis, a
connection to the material in question. This connection may be
lineal descent, tribal affiliation, and/or cultural affiliation.
In some cases, this burden can be satisfied by reference to the

261

Museum's inventory vhich shall, wherever possible, identify
descent, tribal origin, and/or cultural affiliation. Where the
inventory is inconclusive or cannot determine affiliation, the
requesting party may satisfy its burden through evidence of
geography, descent, kinship, archaeology, anthropology,
linguistics, folklore, oral tradition, historical patterns of
ownership and/or control, and any other relevant information or
expert opinion.

For human remains and funerary objects, once cultural
affiliation has been satisfactorily established, the requesting
party has met its burden of proof and the material shall be
repatriated or otherwise disposed of in accordance with the
wishes of the affiliated individual or tribe.

In the case of ceremonial and religious materials, the
claimant must show that the materials are needed by traditional
Native American religious leaders for the practice of traditional
Native American religions. For communally-owned Native property,
the requesting party must show that the material has an ongoing
historical, traditional, or cultural relevance important to the
Native American group or culture itself, rather than property
owned by an individual Native American, and which, therefore,
could not have been properly alienated, appropriated, or conveyed
by any individual at the time the object was separated from such
group. Once the claimant has satisfactorily established its
case, and the Board of Trustees has affirmed its claim, the
claimant is entitled to the material.

E. Special Review Committee on Repatriation . The Board of
Trustees, upon being notified by the Museum Director or the
American Indian or Native Hawaiian claimant that the discussions
concerning repatriation have reached in impasse, shall, within
fifteen (15) days, constitute a Special Review committee to
review the nature of the controversy, to examine the evidence
presented by the parties in dispute, and to present its findings
and recommendations to the Collections committee within thirty
(30) days. The Collections Committee shall then review the
findings and recommendations of the Special Review Committee and
shall, within fifteen (15) days, submit a recommended course of
action to the Board of Trustees for its consideration in
accordance with the provisions of Public Law 101-185, Section
5(C) (B), Sole Authority .

F. Access and Technical Assistance . The Museum recognizes
that certain items in its collections are needed by traditional Y
Native American religious leaders for the practice of Native
American religions. The Museum is committed to a policy of
repatriation of these and other cultural materials. Where
repatriation is not requested, or where a repatriation agreement
is not reached, the Museum is committed to a policy of mutual and
Shared access and use of these materials, as culturally
appropriate. Access and use, in the form of availability of

23-074 96-10

262

materials for examination or for loan, will be within the purview
of the collections management policy developed by the Collections
Committee.

The Museum also is committed to a policy of offering
American Indian tribes and Native Hawaiian organizations to which
materials are repatriated, technical assistance in the care,
preservation, use, and disposition of materials. Such assistance
may encompass advice to tribal museums and training programs,
where reguested. Where repatriated materials may be altered or
destroyed because of their sacred or traditional nature and
function, the Museum shall obtain permission from the Native
American owners prior to conducting any destructive analysis or
documenting the existence of the materials through reproduction
or graphic representation.

V. TREATMENT, CARE AND EXHIBITION .

The National Museum of the American Indian will develop and
adopt a collections management policy that describes detailed
procedures for accession, deaccession, gifts, exhibition,
display, handling, access, and many other aspects of collections
management. That policy must respect and accommodate the
cultural and religious sensitivities surrounding the Museum's
collections. The Museum will develop its detailed collections
procedures in accordance with the policy that culturally-specific
information, data, documentation, reproduction and depictions —
whether contained or transmitted in written, audio, visual cr
computer form — are the sole property of the affiliated group, and
its consent regarding treatment, care and exhibition of its
cultural materials must be obtained prior to decisions being
made. The following collections management principles will guide
the formulation and implementation of the collections management
policy.

A. Exhibition and Display . Religious and ceremonial
objects shall be exhibited or displayed only with the consent of
the culturally-affiliated group. Before displaying religious,
ceremonial, or potentially sensitive material as part of
exhibitions or public programs, curators shall consult with
interested and concerned parties and shall consider and be guided
by their views in determining the method of display. Planning
of exhibitions — format and content — shall be done in consultation
with Native American representatives of the tribe and/or culture
involved to assure historical and cultural accuracy in the
presentation of all information and materials, and to avoid
desecration, insensitive treatment, and inappropriate
interpretation of religious or ceremonial materials.

B. Curat ion . Curation and care of cultural materials shall
be done in accordance with the highest standards of museum
practices and in consultation with the views of appropriate
representatives from culturally-affiliated groups, particularly
where culturally and religiously sensitive materials are
involved. If an American Indian tribe. Native Hawaiian

263

organization, or Native American group requests that the Museum
retain custody of religious, ceremonial, communal ly-owned, or
other tribal property eligible for repatriation, they shall
inform the curator and other appropriate staff regarding
permissible methods of handling, care, and protection of such
articles.

. C. Access . Access to the collections for viewing, study,
the performance of ceremonies, and for other purposes of Native
American people shall be allowed to the maximum extent.
Facilities will be constructed within the Museum and/or under its
auspices, as appropriate, for the purpose of conducting
ceremonies. Public access to the collections for research,
study, or viewing purposes may be restricted if such access
offends the religions or cultural practices of Native American
peoples.

D. Outreach . Education constitutes an essential purpose of
the Museum. Through the loan and exchange of cultural materials
and travelling exhibitions the Museum will endeavor to make its
collections more widely available to Indian communities and to
present contemporary expressions on ?n ongoing basis. Provisions
shall be made to furnish materials and information to Native
people through, but not limited to, the application of
telecommunications and other technologies. The Museum also is
committed to training Native American people in museology by
developing a full curriculum of programs at all levels — senior
management, administration, curatorial, technical, fellowships,
support, and security.

E. Acquisitions . Objects will not be acquired by gift,
purchase, or exchange unless the provenance is complete and
consistent with principles of law and policy established by the
Museum and the Smithsonian Board of Regents. In its acquisition
practices, the Museum endorses and abides by the principles of
the UNESCO Convention and the American Indian Religious Freedom
Act. The Museum will consult with all concerned parties before
acquiring materials that may be culturally or religiously
sensitive. Further, the Museum will not accept archeological
materials unless they have been excavated in compliance with
appropriate international agreements, negotiated tribal
agreements, federal laws and guidelines, and such other state and
local laws as may be applicable.

Title to all objects acquired for the permanent collections
shall be obtained free and clear. As a general rule, the Museum
must not accept gifts with restrictions as to use or future
disposition. The Museum may, however, permit exceptions to this
policy for materials that are religiously or culturally sensitive
and where the donor imposes restrictions on access, display,
research, treatment, storage, or care. Under exceptional
circumstances, and with approval of the Board, the Director may
accept objects with restrictions or limitations, provided that
the condition shall be stated clearly in the instrument of
conveyance and made a part of the records.

264

Whenever an item of cultural property covered by this policy
shall be offered or gifted to the Museum, or whenever it shall
come to the attention of the Museum that such item is or is about
to be placed on the market for sale, trade or exchange, the
Director shall notify the appropriate American Indian tribe.
Native Hawaiian organization, or Native American group of the
known circumstances. To the extent feasible, and upon the
request of the culturally-affiliated tribe or group, the Museum
will coordinate efforts with the tribe or group to recover or
obtain a treatment-and-care agreement, as appropriate.

265

The National Museum of the American Indian

Smithsonian Institution,

Repatriation Office

The Repatriation Office
1995 Annual Report

Prepared by Sonya Wolff
October 1, 1995

DRAFT

266

The Repatriation Office (RO) at the National Museum of the
American Indian (NMAI) was established in 1990 in accordance with
the National Museum of the American Indian Act (NMAIA) , 20 U.S.C.
Section 80q (Public Law 101-185) . The NMAI Act requires the
Smithsonian Institution to prepare an inventory of Native American
human remains and funerary objects and to repatriate such material
on request to culturally affiliated Native Americans. The Act
authorizes the assembly of a Board of Trustees and empowers them to
write policy. The Collections Policy, written by them in 1992,
contains the implementation for the repatriation of sacred objects
and items of cultural patrimony. The NMAI has also voluntarily
adopted the principles contained in the Native American Graves
Protection and Repatriation Act (NAGPRA) , 25 U.S.C. Section 3001
(Public Law 101-106) , for the inventory and repatriation of sacred
objects and objects of cultural patrimony.

In accordance with NAGPRA, the RO has submitted the combined
summaries and inventories of the NMAI collection to all Federally
recognized tribes. This mass mailing was completed in November
1993. At present, a second mailing is being organized to inform
Native American groups of approximately 5,000 new entries in the
NMAI database.

This 1995 Annual Report of the Repatriation Department of the
National Museum of the American Indian reports on the activities
and progress of the department, as well as the present status of
research through the end of the 1995 fiscal year.

I. THE NMAI HUMAN REMAINS COLLECTION

As part of the development of the RO, a Human Remains Vault
(HRV) has been established, and all human remains known in the
collection have been removed from general storage areas and are now
housed in the HRV.

The NMAI collection records contain 534 catalogue entries for
human remains (HRs) 1 . Some of these catalogued remains are no
longer in the collection, some have been deaccessioned for
repatriation or for other reasons 2 . Currently, there are 268 human

1 This is the total number of catalogued human remains entries .
Some catalogue numbers include more than one remain; these remains
are considered one unit or project.

2 Seventy- three of these entries are for HRs that are no longer
in the collection (this includes 36 LOWs) . The NMAI Board of
Trustees has deaccessioned 193 catalogue entries from the museum

267

remains catalogue entries in the collection. These catalogue
entries have been grouped into 104 various-sized projects (mainly
by geographic location or by collector) to facilitate the
completion of the research reports 3 .

Table I Summary of Human Remains Catalogue Numbers (HRCN) and
Reports

Total number of HRCN cataloged in database: 534

Total number of HRCN present in the HRV: 329

(includes those already deaccessioned)

Total number of HRCN left to deacession: 268

Total number of HRCN no longer in collection: 266

Inventory LOW 3 6

Exchanged 10

Removed 12

Discarded 01

Transferred 13

Presented 01

Deacessioned 193

Total number of HRCN repatriated: 132

Total number of HRCN cataloged as medicine to date: 73

Total number of research reports (projects) needed: 98

Currently, there are a total of 73 medicine bundles containing
HRs in the collection. Human remains which are part of medicine
bundles are considered to be bundles rather than HRs. It was
decided by the NMAI staff and the Traditional Care Committee that
medicine bundles containing HRs will not be rehoused to the Human
Remains Vault, but will remain in their current location until they
are repatriated or the Repatriation Office is instructed otherwise.

collection. Of the deaccessioned collections, 132 have been
repatriated.

3 "Repatriation: The Status of Human Remains Research" by
Wolff, Sonya F., and Kathleen E. Ash-Milby, Department of
Repatriation, 1995. (Also referred to as the "Scope Report") .

268

II. THE REPATRIATION OFFICE: RESEARCH

For the last year, the primary focus of the research section
of the RO has been to organize and prioritize the repatriation of
HRs in the collections of the NMAI . To date all known HRs in the
collection have been rehoused in the Human Remains Vault; the Human
Remains Database has been updated; a Scope Report was prepared
detailing the status of all remains still present in the
collection; three new researchers were hired and the whole research
process was put into full swing.

The Human Remains Database is maintained on a Q&A program and
includes records of all known HRs in the NMAI collection. This
database is an adaptation of the Registration database and was
completed in the Fall of 1993. Since then, entries for HRs found
in the collection have been added to the database. Through the
updating process, several Registration problems have been resolved,
remains have been located through shelf -searches, and all
unidentified bones in the collection have been identified by a
physical anthropologist.

In November 1994, scholarly procedures were established for
research reports on HRs and sacred items subject to repatriation.
Since that time ten repatriation reports have been written. Four of
these reports have been approved by the Collections Committee (a
delegation of the Board of Trustees) and the objects deaccessioned.
Four reports are awaiting review by the Collections Committee
(these reports are discussed in more detail below) and two have
just be completed. Of these ten reports there have been two reports
on sacred items, including the Blackfeet Thunder pipe, and the
Iroquois Wampum Belts. Both are awaiting review by the Collections
Committee in October.

Table II Repatriation Reports

Total number of repatriation reports completed: 10

Number of repatriation reports reviewed by the

Board of Trustees: 4

Number of repatriation reports awaiting review by

the Board of Trustees: 4

Number of repatriation reports on HRs: 8

Number of repatriation reports on sacred items: 2

269

Since 1989, the RO has received eight formal repatriation
requests from Native groups. Three requests have been for
ceremonial items: The Blackfeet have requested the return of a
Thunder Pipe; the Iroquois have requested Wampum Belts and False
Face Masks; and the Omaha have requested a White Buffalo Hide and
a Pipe. Three requests by the Cheyenne River Sioux, the Crow and
the Cherokee Nation have been for human remains. Two tribes, the
Hopi and the Menominee, have asked for all affiliated materials in
the NMAI collection and have declared intellectual property rights
over all information related to their tribes.

Table III Repatriation Requests Since 1989

Requestor
Blackfeet
Iroquois

Omaha

Cheyenne River Sioux

Crow

Cherokee

Hopi

Menominee

Items Requested

Thunder Pipe

Wampum

False Face Masks

Type of Items

Sacred/Ceremonial

Sacred/Ceremonial
Sacred/Ceremonial

White Buffalo Hide

Human Remains

All affiliated materials

Sacred/Ceremonial

III. RECENT FUNDING FOR REPATRIATION RESEARCH

In the winter of 1995, the Repatriation Office was awarded
$170,000 of Trust money by the Board of Trustees to increase the
staff and hasten the repatriation of HRs . The two researchers,
Patrick Tafoya and Chris Fragnito, both of Indian decent, have been
hired on two year contracts at $25,025 per year: two years for both
researchers totals $100,100. The remaining $69,900 will be used to
hire regional scholars to conduct research on an "as needed" basis.

Toward this goal, Mr. Marty Sullivan, Director of the Heard
Museum in Arizona, was hired to research the Wampum Belt request by
the Iroquois. Mr. Sullivan was paid $4,125 for his final report
which is presently up for final review by the Board of Trustees.

270

In addition, the RO is negotiating a contract with Karen
Kramer for research reports for Southwest HRs in the collection.
Karen Kramer is an established archaeologist and a Ph.D. student at
the University of New Mexico. In 1994, Kramer completed extensive
preliminary research on a large portion of the HRs from the
Southwest during an internship at the Repatriation Office and is in
good standing at NMAI . If negotiations are successful she will
develop the preliminary reports into finished scholarly ones.

IV. REPATRIATION OUTREACH

Since the RO was established there have been a total of 29
repatriation consultation visits. The Native American groups are
listed in the table below:

Table IV Repatriation Consultation Visits to the National Museum
of the American Indian

Osage

Jemez Pueblo

Iroquois

Zuni

Blackfeet

6 .

Poundmaker Cree

San Carlos Apache

Eastern Shawnee

Absentee Shawnee

10.

Menominee of WI

11.

Skokomish

12.

Navajo Nation

13.

Nez Perce

14 .

Yakima

15.

Oneida of NY

16.

Coyote Valley Porno

17.

Hualapai

18.

Oneida of WI

19.

Gila River

20.

Jicarilla Apache

21.

Hopi

22.

Tulalip

23 .

Kaw

24.

Squaxin

25.

Standing Rock Sioux

26.

Hoopa Valley

27.

Saginaw Chippewa .

January 19 93
October 1993
November 19 93
March 1994
September 1994
November 19 94
December 1994
December 1994
December 1994
January 19 9 5
February 1995
February 19 95
March 1995
March 1995
March 19 95
April 1995
May 1995
May 1995
June 1995
June 1995
July 1995
July 1995
July 1995
July 1995
July 1995
August 1995
August 1995

271

Since 1989, the RO has received eight formal repatriation
requests from Native groups. Three requests have been for
ceremonial items : The Blackf eet have requested the return of a
Thunder Pipe; the Iroquois have requested Wampum Belts and False
Face Masks; and the Omaha have requested a White Buffalo Hide and
a Pipe. Three requests by the Cheyenne River Sioux, the Crow and
the Cherokee Nation have been for human remains. Two tribes, the
Hopi and the Menominee, have asked for all affiliated materials in
the NMAI collection and have declared intellectual property rights
over all information related to their tribes.

During September and October 1995, repatriation consultations
were not scheduled due to the temporary inaccessibility of the
photographic and paper archives. In November, when the archives
reopen, the consultations will resume with visits by the Kutenai
and the Hoonah .

The Repatriation Office is continuing outreach efforts with
Native American communities. Twice a year the RO co-sponsors a
workshop on repatriation with the National Museum of Natural
History . These workshops take place on tribal lands and are open
to any regional Indian group that would like to attend. However,
the workshops are targeted toward tribes that are coping with
repatriation issues. The main objectives of the workshops are to
allow NMAI to initiate contact with Native representatives and to
educate both Native Groups and the museums on repatriation issues
within specific regional areas. The February 1995 workshop, held
in Palm Springs, California, was sponsored by the Agua Caliente
Cultural Museum. The second workshop was held in September 1995 at
the Mille Lacs Indian Reservation in Mille Lacs, Minnesota.

V. REPATRIATION OFFICE STAFF

At present, the Repatriation Office consists of only two staff
members: Sonya Wolff and Karen Brockman. A search is currently
underway for a Repatriation Manager under a Schedule A structure.
The Administrative Assistant position has recently been vacated.
Patrick Tafoya and Christopher Fragnito are contracted researchers
hired on a two-year basis and are paid with Trust money.

Sonya Wolff. Research Assistant GS 9, 2 -year term appointment.
Sonya has an MA in Archaeology from Cornell University. She began
working on October 11, 1994 under the supervision of Ray Gonyea .
She was hired as a researcher to help facilitate the return of HRs

4 Alice Sadongi from the Public Programs Department coordinates
and orchestrates the Repatriation Workshops. Without her help these
workshops would not be possible.

272

in the NMAI collection. At present she is acting as the assistant
to the Acting Repatriation Manager, presently George Horse Capture.

Karen Brockman. Research Assistant GS 7, 2 -year term
appointment, Oneida. Karen has an MA in Anthropology from the
University of Colorado and a Museum Studies Certificate from George
Washington University. She is the most recent addition to the
Repatriation Office and began work on September 5. She is primarily
working on research reports for the return of HRs, but will also
work on tribal consultation visits. In addition she will help
fulfill the duties of the Administrative Assistant until a
replacement is hired.

Patrick Tafoya. One-year Contract Researcher (equivalent to
a GS 7) , Navajo. Patrick has an MA in Divinity from Harvard
University. He is a contract researcher hired to research projects
related to HRs in the collection.

Christopher Fragnito. One-year Contract Researcher
(equivalent to a GS 7), Mohawk from Canada. Christopher has a BA
in History and English from Concordia University. He is a contract
researcher hired to research projects related to HRs in the
collection. He will be starting work on October 16, 1995.

IV. SUMMARY OF CASES

During 1995, two repatriations (for HRs) have taken place, and
13 projects (for HRs and sacred objects) have been started and are
at various stages of completion. Detailed descriptions of these
projects follow below.

Cases Completed and Repatriated in 1995

1. Diegueno. In the fall of 1995, 77 human remains and associated
funerary objects were repatriated to three bands of the Diegueno
Indians of Southern California. The three bands include the Vie j as
Band of Mission Indians, the Santa Ysabel Mission Indians and the
Mesa Grande Band of Mission Indians. The collection was acquired
from E. H. Davis in the early 1900s.

2. Shuar Achuar. This report was completed by Assistant Curator
Nancy Rosoff. All remains were deaccessioned by the Board of
Trustees in the Spring of 1995. Ms. Rosoff and the Repatriation
Office consulted with the Shuar Federation concerning the return of
the 12 Tsantsas (shrunken heads) . They were returned on October 6,
1995, with the assistance of a member of the Shuar Federation while
visiting the United States for the Indigenous Leaders Conference.

273

Human Remains Deaccessioned

1. Burr's Hill. This report was completed by Assistant Curator
Eulalie Bonar. The Board deaccessioned the remains in the spring of
1995. The remains are affiliated with the Wampanoag Tribe of Rhode
Island, however, there are several situations which have delayed
their repatriation. The first difficulty is that the majority of
the Wampanoag Tribes are only state recognized. There is one
Federally recognized Wampanoag group, but they do not have any
interest in the Burr's Hill material. Secondly, there are multiple
claims for the Burr's Hill material including a claim by the
Federally recognized Narragansett Tribe. The RO is in the process
of exploring the situation with the Wampanoag Nation of Rhode
Island.

2. Oneida. This report was completed by Assistant Curator Cecil
Ganteaume . The remains were deaccessioned by the Board in the
spring of 1995. At present there are internal political
complications among the Oneida of New York, so the Board has
decided to hold them until the next Board meeting in October 1995.
The RO is awaiting the decision of the Board of Trustees.

Human Remains Reports in Progress

1. Alabama- -Charlotte Thompson Place. This report was completed by
Patrick Tafoya and will be reviewed by the Collection Committee.
The report covers one remain collected by C. B. Moore from an area
known as Charlotte Thompson Place in Alabama. There are no
associated funerary objects. The cultural affiliation is difficult
to assess, however, based on the historical background of the area
it has been determined that the remain is probably affiliated with
the Choctaw Indian people. It is Mr. Tafoya 's recommendation to
return the HRs to the Choctaw tribes.

2. Kansas- -Child' s Hand with Bracelet. This report was written by
Erica Brick, an intern, and is awaiting review by the Collection
Committee. The report covers one remain and a few associated
funerary objects from the Sherman Collection. The cultural
affiliation is undetermined. It has been recommended that the
remain be repatriated to the Kansas Unmarked Burial Sites Board.

3. Hawikuh. The majority of the Hawikuh HRs have previously been
deaccessioned and transported to the National Museum of Natural
History in 1993 at the request of the Pueblo of Zuni .Subsequently,
three additional undocumented Hawikuh remains were located during
a vault search in the NMAI collection. This report will be written
by Assistant Curator Eulalie Bonar, but because of her work on the
Textiles Project, it has been put on hold until the new year.

274

4. Durand's Bend. This report has just been completed by Patrick
Tafoya, and is awaiting approval of the Curatorial Council. This
collection consists of three HRs and several associated funerary
objects collected by C. B. Moore in an area known as Durand's Bend
in Alabama. The cultural affiliation has been determined to most
likely be Choctaw.

5. Peru. Ramiro Matos is writing this report with the help of
Jessica Streibel who has already completed the preliminary archival
research. In total there are 13 HRs from Peru and no associated
funerary objects. The project has been temporarily put on hold
until the end of the Indigenous Leaders Conference in October. The
report should be finished by late December.

6. Diegueno Medicine Man (#11/6 921) . Sonya Wolff began research on
this remain, but due to current staffing problems in the
Repatriation Office this report has temporarily been put on hold.
Her research will resume when the Repatriation Manager is hired.
This remain was collected by E. H. Davis and is of Diegueno
ancestry.

7. Delaware. This report was initially prepared by Laura Mussio,
an intern, and is being rewritten by Assistant Curator Eulalie
Bonar. The report will consist of two HRs from the Throgs Neck and
Brooklyn areas of New York. They are both likely affiliated with
the Delaware Indian people.

8. Human Skull Rattle (#22/3213). Research on this remain has
recently been started by Karen Brockman. It is probably related to
a group of HRs that were deaccessioned by the Board of Trustees in
1993 and returned to the Seneca of New York. The previously
deaccessioned and repatriated remains did not have a report written
to the current standards.

9. Vertebra with Arrow Point (#21/4320). Karen Brockman has
recently completed her report for this remain. It is probably
related to a group of HRs that were deaccessioned by the Board of
Trustees in 1993 and returned to the Cayuga of New York. The
previously deaccessioned and repatriated remains did not have a
report written to the current standards. This report is awaiting
approval of the Curatorial Committee.

Sacred Items

1. Blackfeet Thunder Pipe. The Blackfeet Indian people visited
NMAI for a repatriation consultation in September 1994. Upon
locating the Thunder Pipe, the Blackfeet wrote to the NMAI formally
requesting its return. The tribe borrowed the pipe for one year
while the request was considered. The research report and request
for repatriation, written by Ray Gonyea and George Horse Capture,

275

is presently awaiting review by the Collections Committee.

2. Iroquois Wampum Belts and False Face Masks. There has been a
long-standing correspondence history between the Iroquois and the
Museum of the American Indian, Heye Foundation. In the Spring of
1994, the NMAI received a formal request, under the guidelines of
NAGPRA, from the Iroquois for the return of all Wampum Belts and
False Face Masks that are culturally affiliated with the Six
Nations. Dr. Martin Sullivan, Director of the Heard Museum, was
hired to do the research report for this request. This report is
now awaiting review by the Collection Committee. Presently, no one
is assigned to research the False Face Masks.

VII. BUDGET 1995 (At present these figures are not finalized)

FUND and INTENT

Amount Amount
Budgeted Spent

RPOPS

521 Travel

- Staff travel to Washington, DC.

- Professional conferences

$2,000
$5,000

$1,612.55
$3, 665.61

Special Travel - Transportation

- Tribal delegation repatriation
visits

- HR & Sacred Object escort

- South American symposium
TOTAL TRAVEL

$30,000 $9,413.50

$13,000 $2,749.41

$2,058.00

$50,000 $19,499.07

522-523 Transport and Rental

- HR and Sacred Object return

525 Contracts - Tech. /Prof. Services

- Mail service re-announcing intent
to repatriate

- Listing repatriated items in the
Federal Registry

- Researchers for repatriation
reports and consultations

TOTAL =

REMAINING =

$10,000

$0.00

$5,000 $5,000.00

$20,000 $5,347.00

$90,000 $15,347.00

$44,846.07

276

RPSUP

526 Supplies -

- Research books, pub.

- Laptop Computer

- Office Supplies

- Copies

- Shipping supplies for HR's

- Photo supplies

TOTAL =
REMAINING =

$3,

000

$5.28

$3,

000

$3,068.00

$3,

000

$380.48

$3,

000

$0.00

$7,

000

$7,644.79

$1,

000

$99.30

$20,

000

$14,197.85
$5,802.15

RPTRAIN

525 Staff Development

- Professional conferences

- NMAI Workshops

TOTAL =
REMAINING =

$2,
$3,

,000
,200

$995
$320

,00
, 00

$5,

,200

$1,315

,00

$3,885

.00

IN SUMMARY
REPOPS
RPSUP
RPTRAIN

GRAND TOTAL =
REMAINING =

$90,000 $44,846.07

$20,000 $5,802.15

$5,200 $3,885.00

$115,200 $54,533.22

$60,666.78

277

REVISED DRAFT 3/17/95

NATIONAL MDSEDM OF THE AMERICAN INDIAN
REPATRIATION PROCEDURES

I . INTRODUCTION

The National Museum of the American Indian (hereinafter
referred to as "NMAI" or "the Museum") was established by Act of
Congress on November 28, 1989 (hereinafter referred to as "NMAI
Act") . in establishing NMAI, Congress granted sole authority to
the Board of Trustees over accessions, deaccessions, loans,
exchanges, sales, and all other aspects pertaining to use of the
collections. As part of its authority over collections, the Board
of Trustees adopted a Collections Management Policy on September

II, 1992 which includes a Section on Repatriation, a copy of which
is attached hereto as Appendix A.

The Museum has as one of its highest priorities the
expeditious implementation of its repatriation policy. To carry it
out and to assist Native people in preparing and submitting claims
to NMAI for repatriation, the following procedures have been
developed. The cornerstone of these procedures is NMAI's
commitment to continuous dialogue between the Museum and Native
American people to assure that all viewpoints and beliefs are
considered in its implementation.

II . INVENTORY

A. General. In accordance with the NMAI Act and Repatriation
Policy, NMAI has prepared a computerized inventory of its
collections to be used for purposes of identifying objects in the
collections that may be eligible for repatriation. The purpose of
the inventory is to facilitate repatriation by providing clear
descriptions of objects and establishing the cultural affiliation
between the objects and present-day Native Americans and tribes.

B. Steps. The steps of the inventory process are as follows:

1. Using the best available scientific and historical
information, the Museum will identify funerary objects, communally-
owned Native American property, ceremonial and religious objects
and other objects covered by this policy.

2. Identification will be based on a reasonable belief
standard.

3 . The inventories will be made available to the official
tribal government of all affected Native American tribes at the
earliest opportunity.

4. The Museum will include in its inventories items that are
not positively identifiable as being associated with a particular
American Indian tribe but, given the totality of the information

278

about the materials, make it more likely than not that the item
once belonged to that American Indian tribe.

C Consultation. During the inventory process and following
its completion, the Museum will consult widely with Native American
peoples. This shall include, but not be limited to:

(1) lineal descendants;

(2) Indian tribe officials;

(3) traditional religious and ceremonial leaders; and

(4) Indian c-immunity scholars with specialized knowledge.

With respect to consultation with tribal officials and
traditional religious and ceremonial leaders, the Museum shall
consult with those:

(1) From whose tribal lands the materials originated;

(2) That are, or are likely to be, culturally affiliated with
the materials; and

(3) From whose aboriginal lands the materials originated.

III. REQUESTS FOR REPATRIATION FROM TRIBES

A. General. Letters requesting repatriation shall be sent in
writing to the Director of the Museum:

W. Richard West, Jr. , Director
National Museum of the American Indian
Smithsonian Institution

470 L'Enfant Plaza, Suite 7103, MRC 934
Washington, D.C. 20560

A copy should be sent to the Repatriation Office of the Museum:

Repatriation Project Manager

National Museum of the American Indian

3401 Bruckner Boulevard

Bronx, New York 10461

(718) 828-1176

(718) 828-0980 (facsimile)

The Director will acknowledge the request in writing, provide a
copy of the Museum's Repatriation Policy and these procedures (if
not already made available) , and a copy of the printout of the
relevant collections inventory. A copy of the acknowledgement
letter will be sent to the Repatriation Office which will be the
principle point of contact in the Museum for repatriation
activities.

B. Specific Information. All requests shall refer to
specific objects by reference to the inventory and/or specific
catalogue numbers as well as the physical description. The request
should indicate the category of repatriatable material into which
the objects falls, i.e., funerary object, communally-owned Native

279

American property, ceremonial and religous objects, objects
transferred to or acquired by the Museum illegally or under
circumstances that render invalid the Museum's claim to them- The
request should provide the basis for the classification of objects
into these categories.

C. Provision of Information from the Tribe. Upon request by
the Museum, the tribe shall provide the following additional
information:

(1) N=une and addresc of Indian tribe official (s) authorized
to act as representative in consultations related to particular
ob j ects ; and

(2) Recommendations on how the consultation process should be
conducted, including names and appropriate methods to contact any
lineal descendants, traditional religious leaders, or Indian
community scholars who should be consulted; and

(3) Recommendations for further inquiry in the event the
inventory process has failed to produce sufficient information as
to whether the object fits into a repatriatable category and/ or
whether sufficient evidence of cultural affiliation exists.

0. Provision of Information from the Museum. During
inventory consultation, NMAI will disclose all relevant information
pertaining to collection objects identified in the inventories.
The information shall be provided in writing to lineal descendants,
when known, and to officials and traditional religious leaders
representing Native American tribe that are, or are likely to be,
culturally affiliated with the materials. Included in the
information shall be:

(1) A list of all Indian tribes that are, or have been,
consulted regarding the particular objects;

(2) A general description of the conduct of the inventory;

(3) A projected time frame for conducting the inventory;

(4) An indication that additional documentation used to
identify cultural affiliation will be supplied upon request.

(5) Accession and catalogue entries;

(6) Information relating to the acquisition of each objects
including (i) name of the person or organization from whom the
object was obtained, if known, (ii) the date of acquisition, (iii)
the place each object was acquired, i.e., geographic location, and
(iv) the means of acquisition, i.e., gift, purchase, or excavation;

(7) A description of the objects, including dimensions,
materials, and, if appropriate, photographic documentation and the
antiquity of such objects; and

(8) A summary of the evidence used to determine cultural
affiliation.

(9) Relevant studies that may bear on geographic origin,
cultural affiliation, and basic facts surrounding the acquisition
and accession of the materials.

280

IV. RESOLUTION OF REPATRIATION REQUESTS

A. Burden of Proof. The initial burden of proof with respect
to a repatriation request shall be on the requesting individual or
tribe to establish, by a reasonable basis, (i) that the object
requested falls into a repatriatable category; and (ii) that the
requesting party has a connection to the material in question,
whether by lineal descent, tribal affiliation, and/or cultural
affiliation.

1. Repatriatable Objects. The objects that are subject to
repatriation fall into certain categories as defined by the NMAI
Act and Museum policy.

a. Funerary Objects. Funerary objects are defined as objects
that, as part of a death rite or ceremony of a culture, are
reasonably believed to have been intentionally placed with an
individual of known affiliation at the time of death or later. The
Museum will repatriate any funerary objects associated with human
remains, including objects which are surrogates for deceased
persons. The Museum also will repatriate to a particular tribe,
upon request, any funerary object that is reasonably identified as
having been removed from a specific burial site culturally
affiliated with that tribe.

b. Communally-owned Native American Property. Property held
by the Museum that is property of the Native American group itself,
rather than property owned by an individual Native American is
considered communally-owned property. If such property belonged to
an entire tribe, organization, or group, or was held for communal
purposes and could not have been legally alienated, transferred, or
conveyed by an individual Native American, these items will be
repatriated upon request.

c. Ceremonial and Religious Objects. These are objects that
are needed by Native American religious leaders for the practice of
traditional Native American religions, including the purpose of
ceremonial renewal. Ceremonial and religious objects may include
intellectual property such as photographs, recordings, videos,
field notes, archival materials, and other similar tangible and
intangible property that is directly associated with the
confidential and proprietary realms of Native American religious
and ceremonial practices. Requests for return of these items will
be considered on a case-by-case basis in consultation with Native
American traditional religious leaders and practitioners.

d. Objects Acquired Illegally. This category consists of
objects acquired by or transferred to the Museum illegally or under
circumstances that render invalid the Museum's claim to them.

e. Duplicate or Abundant Objects. These include duplicate
material, numerous similar objects in the collection, or an

281

abundance of a certain type of material.

f Intellectual Property. This category consists of

photographs, field notes, audiotapes, videotapes, archival records,
and other forms of oral and written documentation containing
information that is integral to protecting the confidentiality and
proprietary relalms of Native American religion.

2. Cultural Affiliation. The second prong in establishing a
valid request is the connection between the requesting party ana
the objects. That connection may be based on lineal descent,
tribal affiliation, and/or cultural affiliaiton. In some cases
the burden can be satisfied by reference to the Museum's inventory.
Where the inventory is inconclusive or cannot determine
affiliation, the requesting party may satisfy its burden through
evidence of geography, descent, kinship, archaeology, anthropology,
linguistics, folklore, oral tradition, historical patterns of
ownership and/or control, and other relevant information or expert
opinion.

B. Review of Information. The staff of the Repatriation
Office initially will review all information relevant to a
particular request, and will follow-up with the tribe if
information is missing or if additional materials are needed to
evaluate the claim. The initial focus of all repatriation requests
involves the nature of the material in question and the
circumstances of its acquisition by the Museum. Each repatriation
request carries with it unique facts, circumstances, and legal ana
ethical considerations. Therefore, each request must be reviewed
individually. The Repatriation Office staff will consult with
Museum curators and other staff within the Museum in researching
and evaluating the request.

C Experts. If deemed necessary by the Museum and/or the
tribe to evaluate a specific request, the Museum may retain experts
as may be needed, such as Indian community scholars, specialistsin
tribal traditions, persons in the fields of anthropology,
archeology, and history to assist in evaluating cultural
affiliation. Whenever possible, the Museum will work with Indian
tribes to select experts who are mutually acceptable to the Museum
and the tribe.

D. Conflicting Claims. If multiple claims are submitted, or
if the Museum's research suggests that the materials may be more
closely affiliated with a Native American tribe or tribes other
than the requesting party, the Museum will notify the tribe
submitting the request and all other possible claimants. All
parties with a demonstrable interest will be invited to ]oin in the
consultation, negotiation, and decision-making process. Tne
Museum may retain the objects until such time as all requesting
parties mutually agree upon the appropriate recipient or until a
final decision is made by the Board of Trustees in accordance with

282

these procedures.

E. Visitation. During the consultation phase, and after
receipt of information from the Museum, if the tribe deems it
necessary to visually inspect the materials, the Museum will
provide travel funds for at least one representative to visit the
collections. Visits shall be scheduled by contacting the
Repatriation Office. Visitors are permitted access to the
collections and museum records and may photograph and/or videotape
collection materials subject to the Museum's conservation and
lighting guidelines. Photographs may also be ordered through the
Photography Department according to the current fee schedule.
Staff members can advise requestors about the documentation and
photographs of objects in the Museum's collections.

F. Status of Collections During Consultation Phase. During
the pendency of the claim and before a final decision is reached,
the Museum will continue to care for and treat the collections
subject to the repatriation request with dignity, respect, and
sensitivity. As a general policy of the Museum, objects will
continue to be made available for research if there is no
compelling reason to believe that an object raises the concerns of
the group identified with it. However, if the tribe has specific
concerns about the handling of specific objects including, for
example, whether the objects should be photographed or otherwise
accessible to non-tribal members, the Museum will work closely with
the tribe to accommodate its concerns. Whenever there is a
conflict between a desire for public or scholarly access to
materials by individuals not affiliated with the group identified
with the materials, and the desire of representatives of that group
to protect the materials from access in order to preserve the
traditions and integrity of the culture, the wishes of the group's
representatives will prevail. (See Museum Research Policy)

6. Impasse. If, during the consultation phase, discussions
concerning repatriation have reached an impasse, the Board of
Trustees shall, upon being notified by the Director, constitute a
Special Review Committee within fifteen days. The Special Review
Committee, which will consist of members of the Board and, if
advisable, other individuals with expertise invited by the Board to
participate, will review the nature of the controversy, examine the
evidence presented by the parties in dispute, and present its
findings and recommendations to the Collections Committee of the
Board of Trustees within thirty days. The Collections Committee
shall review the findings and recommendations of the Special Review
Committee and shall, within fifteen days, submit a recommendaed
course of action to the Board of Trustees for its consideration.

V. RECOMMENDATION AND DECISION

A. Recommendations. Upon completion of research,
documentation, consultation and resolution of any conflicting

283

claims, the Repatriation Office will submit a recommendation for
action to the Director of the Museum. If the Director approves tne
recommendation, it will be submitted to the Collections Committee
of the Board of Trustees for action and recommendation to the ruii
Board of Trustees. If the Director disagrees with tne
recommendation or believes that additional research is required,
the Director may either refer the matter back to the Repatriation
Office staff or refer the matter to the Collections Committee or
the Board of Trustees with separate recommendations.

B. Pinal Decision. A13 final decisions regarding
repatriation shall be made by the Board of Trustees in accordance
with the National Museum of the American Indian Act.

C. Notification. The Director will notify the requesting
party (ies) of the final decision of the Board of Trustees. If the
decision is in favor of repatriation, notice of the Museum s
intention to repatriate will be published in a variety of
newspapers designed to provide the widest practicable notice to all
actually and potentially interested parties. Radio notices will
also be provided through the stations most likely to reach all
interested persons. The Museum may seek the assistance of tne
requesting party in identifying suitable other means and locations
for providing notice. The Notices will provide that any interested
person shall have thirty (30) days in which to ob j ect to the
repatriation. Unless any objection is made in writing within that
time period, the materials will be returned no later than thirty
(30) days after the notice period has expired and the Museum will
no longer have any responsibility for such objects.

D. - Objection to Notice. In the unlikely event that an
objection is received during the notice period, it will be reviewed
by the Repatriation Office staff to determine its validity. _ If the
reason for the objection is based on a conflicting claim, the
Museum will follow the procedures set forth above for resolving
conflicting claims and will refrain from repatriating the materials
until all conflicting claims are resolved.

VI . REPATRIATION

A. General. The Museum shall consult with the tribe
regarding the arrangements for return. Under standard procedures,
objects will be packed in suitable containers and shipped to the
location and individual specified by the requesting party. The
authorized representative of the tribe will be asked to sign a
receipt and release form acknowledging receipt of the objects.
Alternatively, the Museum will pay for one of its staff members to
escort objects to their final destination if the tribe so requests.

B. Record of Repatriation. The Museum shall use standard
deaccession procedures to permanently document the content and
recipients of all repatriations. Standard deaccession procedures

284

shall include, for human remains: measurements of the skeletal
remains, observation of traits such as gender and age, pathology of
the individual such as sickness or injury, condition of skeletal
remains, and a complete documentary search of Museum records
related to the remains, their accession, and history. For other
materials, measurements, descriptions and a complete documentary
review shall be conducted. Other procedures such as x-ray or
photography, reproduction of the skeletal remains or materials, or
destructive scientific analysis of the materials prior to
repatriation shall not be done unless the Museum has first obtained
the consent of the tribe. If photography is not permitted, the
Museum may sketch or draw the materials.

C. Procedures for Repatriation Records. If the tribe permits
the Museum to take photographs or make other replicas as part of
the deaccession process but does not want the documentation to be
made available to the general public following repatriation, the
Museum shall take steps to ensure that such information is not
released. Such materials may be placed in sealed envelopes or in
a locked vault with access restricted to staff and affiliated
tribal members.

D. Handling of Objects. The Museum shall notify the tribe of
any presently known treatment of objects with pesticides,
preservatives, or other substances that represent a potential
hazard to the objects or to persons handling the objects.

E. Costs. The Museum will use good faith efforts to make
space available on the Museum's premises for the preparation and
packing of the objects by tribal representatives including the
performance of related ceremonies. The Museum will not be
responsible for any costs for special affairs, religous
observances, or any other materials or services that the requesting
party may deem appropriate in conjunction with the repatriation of
objects.

P. Religious Objects. The Museum will pay for one
representative of the requesting party to travel to New York for
one overnight stay to pick up and escort especially sensitive
religious objects to their final destination. These objects will
be packed in containers suitable for carry-on baggage in an
aircraft cabin if possible. It is recommended that artifacts not
be checked as baggage.

G. Receipt and Release. The Museum will submit a Receipt and
Release Form to the tribe for review and signature to confirm, in
writing, that the materials have been received by the tribe. The
Receipt and Release transfers all responsibility for the materials
to the tribe and holds the Museum harmless from any future claims
to the materials.

H. Conditions of Return. The return of materials in

285

accordance with these procedures to the tribe is based on the
presumption that the tribe will, in the case of human remains and
funerary objects, rebury them in the ground. In the case of sacred
objects and cultural patrimony, the presumption is that the
materials are needed by the tribe for religious practices and
cultural renewal and will be retained permanently by the tribe.
Therefore, an implied condition of repatriation is that the tribe
will not transfer, sell, alienate or other traffic in these
materials for financial gain or otherwise, nor authorize others to
do so. If the Museum has a good faith reason to believe that the
repatriated materials may, following returr.. be transferred, sold,
or otherwise alienated by a member of the tribe without the tribe's
authorization, the Museum may impose contractual conditions on the
return that require the tribe to permanently retain the materials.

VII. INTERNATIONAL REPATRIATIONS. The Museum will consider
international requests on a case-by-case basis, taking into
consideration, among other factors, whether the requesting tribe is
located on or near the United States border with Canada and Mexico
and has members in the United States and whether the country
requesting the materials has a policy of reciprocity with respect
to repatriation of Native American materials.

VIII. POST-REPATRIATION PROCEDURES.

A. Technical Assistance. The Museum is available to provide
technical assistance in the care, preservation, use, and
disposition of materials following repatriation. Such assistance
may include advice to tribal museums and training programs, if
requested.

VTJJ. ALTERNATIVES TO REPATRIATION. Under certain circumstances,
the Museum may propose alternatives to repatriation for the tribe
to consider. Alternatives may include, for example, retention by
the Museum of the object for care and conservation, with the
understanding that the tribe will have access to the object as
needed for religious or ceremonial purposes .

* Additional materials submitted by the Smithsonian Institution will be kept on file
in the Senate Committee on Indian Affairs.

286

WESTERN SHOSHONE HISTORIC PRESERVATION SOCIETY

ELKO INDIAN COLONY
1561 PINENUT CIRCLE
ELKO. NEVADA &9601
PHONE » (702) 738-4147

FAX $ (702) 738-7070
E-Mail - klbbey06ierra.net

Eieojtm Board at TnMn

Bute Valley, Nevada

Baltic Mouataia

Larrf K.bbr

Bto Iraliao Coloi
Hko. Nevada

Active Ueiabev'i

Baltic Mount am Indau Coloar
Batik Uoucnatri Nevada

AnaM PoUette
Rebecca L Jovce

November 30, 1995

The Honorbale Senator John McCain

Chairman

United States Senate

Senate Committee On Indian Affairs

Washington, D.C. 20510-6450

Dear Mr. Chairman:

The enclosed document is in relation to the Senate Oversight Hearingon
NAGPRA scheduled for December 6, 1995, at the Russell Senate Building at 9:30
a.m.

Contemporary Native American Indian Burials are being destroyed and des-
ecrated, as they were in the past, and legally in a manner of speaking today, and
measures must be taken to hinder or distort this activity.

Indian Cemeteries must be given a form of legal justice in order to safe-guard
them from future mitigation and or excavation. Hopefully the contents of this docu-
ment can provide an avenue that will enhance the concerns and interest of the
Native American Indian in their plight to preserve and protect their Traditional
Indian Cemeteries and or Burial Sites.

If you have any questions, please feel free to contact this organization. Thank
you for your time in tnis matter and for viewing this document.

Sincerely,

Larry Kibby, Program Director
W.S.H.P.S.

287

DATE: November 28, 1995

TO: Senate Committee On Indian Affairs

FROM: Larry Kibby, Consultant/Director

Western Shoshone Historic Preservation Society

SUBJECT: Senate Oversight Hearing On NAGPRA

On November 16, 1990, the United States 101st Congress enacted the Native
American Graves Protection and Repatriation Act(NAGPRA)-H.R. 5237OP.L.
101-601), for the purpose of providing for the protection of Native American
Indian Graves and for other purposes.

Under NAGPRA, Section 2 DEFINITIONS (1) "burial site" means any natu-
ral or prepared physical location, whether originally below, on or above the sur-
face of the earth, into which as a part of the death rite or ceremony of a cul-
ture, individual human remains are deposited.

Under NAGPRA, Section 2 DEFINITIONS (5) "Federal Lands" means any
land other than tribal lands which are controlled or owned by the United
States.

Under NAGPRA Section 3 OWNERSHIP (a) Native American Human
Remains and Objects-.

WHEREAS, in relation to this Oversight Hearing on NAGPRA, the Senate
Committee On Indian Affairs does need to justify a term directed at
"Contemp orary Native American Ind ian Burials" , that are in fact
"Burial Srtes"7 located on "F ederal Lands ", that should be "Owned" and
" Mana ged" by those Sovereign Nations claiming "Ownership".

WHEREAS, due to "THE INDIAN REMOVAL ACT"(i83o): certain
Indian Lands became "Federal Lands" , in which some "I ndian Cemeter-
ies" and "Burial Si tes" became a part of the "Publie Domain^, which has
led to Anthropology and Archaeology "Own ership" , that did in fact lead_ to
unnecessary excavations of ^Native Ame rican Indian Hum an Remains
and or Sac red Ob jects" , from these declared Native American "Indian
Cemeteries" and or "Bur ial Sites".

WHEREAS, due to "THE GENERAL ALLOTMENT ACTX1887): certain
Indian Lands became "Federa l Lands" , in which some "India n Cemeter-
ies" and "Burial Sites" became a part of th" """*»«" nnmain" which has
led to Anthropology and Archaeology "Ownership ", that did in fact lead to
unnecessary excavations of ^N ative American Indian H uman Remams
and or Sacred O bjects" , from these declared Native American .Indian
C emeteries"a nd or "Bu rial Sites" .

Page One

288

WHEREAS, due to "THE RELOCATION ACT"(i9 5 6): certain Indian
lands became "Federal Lands" , in which some "Indian Cemeteries" and
"Burial Sit es" became a part of the "Public D omain" , which has led to
Anthropology and Archaeology " Ownership" , that did in fact lead to unne-
cessary excavations of " Native A mer ican Indian Human Remains and or
Sacr ed Objects" , from these declared Native American "Indian Cemeter-
ies!' and or " Burial Sites" .

WHEREAS, fact, NAGPRA does allow for Repatriation of Remains and or
Sacred Objects from Museums and other such places, to identify Burial Sites,
and for the Sovereign Nations to declare Ownership of regarded Funerary
items, however, NAGPRA does not resolve the fact that, Native American
Indian Cemeteries and or Burial Sites, are still being excavated, due to their
existence on Federal Lands, declared to be a part of the Public Domain.

WHEREAS, Indian Cemeteries and or Burial Sites, located on the Public
Domain, under management of such federal agencies as the U.S. Forest Serv-
ice, Bureau of Land Management and National Parks Service, have in fact
been addressed by the Anthropology and Archaeology Community as to
being either Prehistoric and or Historic, and Federal Property.

WHEREAS, fact, NAGPRA does allow for Consultation with the Sovereign
Nations, Government to Government, in relation to the findings of Prehis-
toric or Historic Sites, that may or may not contain Burials, on Public Lands,
however, NAGPRA does not allow for any Legal Protection of Indian
Cemeteries and or Burial Sites, which are still being utilized by the Sovereign
Nations to this date for burial of their Tribal Member's, and that are located
outside of Reservation Boundaries, on so-called Public Domain, considered to
be the Legal Traditional Territory of the Sovereign Nations, leading to possi-
ble Mitigation and or excavation of these sites, by Archaeologist.

WHEREAS, legal factor's, Federal and State Laws, are structured favorable to
Anthropologist and Archaeologist and or therein of, towards declaring such
sites on Federal Lands as property of the Federal Government, and that all
due consideration of these areas must be established towards the Anthropolo-
gist and Archaeologist Community, with sincere regard of the Scientific
Research and or Data that can be obtained and utilized to evaluate the past, in
order to enhance the education of Man for future generations.

WHEREAS, because Anthropologist and Archaeologist consideration is
established and given priority, such Indian Cemeteries and or Burial Sites
such as the Wells, Nevada Indian Cemetery and the Ruby Valley, Nevada
Indian Cemetery(enclosed data), that are located on Federal Lands are not
addressed in any form of either Federal and or State laws that assure the Pres-
ervation and or Protection of.

WHEREAS, due to the Relocation and Reservation Down-sizing of the
Native American Indian and their reservations, some Indian Cemeteries and
or Burial Sites, were not moved, due to Traditional Respect, therefore, such
Sites are located on what is now known as Federal Lands and are not a legal
part of the lands of the Sovereign Nations.

Page Two

289

WHEREAS, due to Relocation and Reservation Down-sizing, such Indian
Cemeteries and or Burial Sites such as the Wells, Nevada Indian Cemetery,
Ruby Valley, Nevada Indian Cemetery, Rock Creek, Nevada Burial/Cemetery,
Cherry Creek Range, Butte Valley, Nevada Cemetery, have been and are still
being utilized for Traditional Burial's and cared for by the Native American
Indian Community, though in such cases as the Rock Creek, Nevada
Burial/Cemetery, and the Cherry Creek Range, Butte Valley, Nevada
Cemetery, use of, was discontinued, though they are located on the Public
Domain and Living/Lineal Descendants do protest any form of destruction or
desecration therein of.

WHEREAS, due to priority regards provided to the Anthropology and
Archaeology Community, such areas as the Rock Creek Burial/Cemetery and
the Cherry Creek Range, Butte Valley, Nevada Cemetery are not afforded
legal protection and become available for near future Mitigation and or for
Excavation, because they are located on the Federal Lands.

WHEREAS, Indian Cemeteries and or Burial Sites are a valid part of the Tra-
dition and Traditional Belief of the Sovereign Nations, not or New Age The-
ory or Philosophy and not afforded any manner of respect by some Anthro-
pologist and or Archaeologist, nor is there any form of legal protection for
them.

THEREFORE, the Senate Committee On Indian Affairs must promote an
Amendment for the Native American Graves Protection and Repatriation
Act of 1990, to where a constructive form of Legal Justice will prevail for the
Sovereign Nations in their endeavor towards the Preservation and Protection
of their Native American Indian Cemeteries and or Burials, located on Fed-
eral Lands, understood to be the Public Domain.

FURTHERMORE, the Senate Committee on Indian Affairs must promote
an Amendment for the Native American Graves Protection and Repatriation
Act of 1990, to where a legal description can be established for such Indian
Cemeteries and or Burial Sites as; the Wells, Nevada Indian Cemetery, Ruby
Valley, Nevada Indian Cemetery, the Rock Creek, Nevada Burial/Indian
Cemetery and the Cherry Creek Range, Butte Valley Cemetery, in order to
legally secure Protection of such Indian Cemeteries and or Burial Sites,
located on Federal Lands, understood to be the Public Domain, managed by
such agencies as the Bureau of Land Management, U.S. Forest Service and
National Parks Service, to where they can not be labeled as Prehistoric and or
Historic, eligible for Mitigation and or Excavation, by Anthropologist and or
Archaeologist.

FURTHERMORE, the Senate Committee On Indian Affairs should Amend
the Native American Graves Protection and Repatriation Act of 1990, to
include separation of Federal Funds with a larger amount directed to the Sov-
ereign Nations and not to those institutions such as Museums, whom have
discriminately been revered with an unnecessary priority, endorsed by the
Anthropology and Archaeology Community.

Page Three

BOSTON PUBLIC LIBRARY

290

3 9999 05983 729 2

FURTHERMORE, the Senate Committee On Indian Affairs should Amend
the Native American Graves Protection and Repatriation Act of 1990, to
include such language that will distort the Theory and Philosophy of the New
Age Organizations and or Groups, and that such language will advocate a legal
endorsement of the Sovereign Nations Tradition and Traditional Belief, so
that Indian Cemeteries and or Burial Sites will not become a Public mockery
or a tool to be used for personal and or monetary gain.

FURTHERMORE, the Senate Committee On Indian Affairs should Amend
the Native American Graves Protection and Repatriation Act of 1990, to
include such language to where full priority shall be established for the Sover-
eign Nations or the Native American Indian to fully identify, manage and
own, Indian Cemeteries, Burial Sites and those Funerary Objects of Sacred
identity and all other such Artifacts, discovered inadvertently or otherwise on
Federal Lands, managed by those Federal Agencies such as the Bureau of
Land Management, U.S. Forest Service and the National Parks Service.

FURTHERMORE, the Senate Committee On Indian Affairs must Act in
Good Faith, in order to secure a realm of long over due Justice, necessary for
the Preservation and Protection of Indian Cemeteries and or Burials, with the
understanding that our Ancestor's are not the Anthropologist or Archaeolo-
gist Prehistoric People, but are Grandfather's, Grandmother's, Aunts and
Uncles, relatives of Contemporary Native American Indians, that should be
left where they have been laid to rest with Traditional Respect.

THEREFORE LET IT BE STATED CLEARLY, that the Senate Commit-
tee On Indian Affairs should in a manner of respect install such legal factor's
relevant to the Preservation and Protection of ALL NATIVE AMERICAN
INDIAN CEMETERIES and or BURIAL SITES, within the text of the
Native American Graves Protection and Repatriation Act of 1990, so as to
where those Sovereign Nations of the Native American Indian will know that
the United States Government is upholding it's TRUST OBLIGATION,
TREATY OBLIGATION, in a GOVERNMENT to GOVERNMENT
manner as so declared under Article VI of the United States Constitution.

AND LET IT BE FINALLY STATED, that the Senate Committee On
Indian Affairs does endorse the Tradition and Traditional Belief of those Sov-
ereign Nations of the Native American Indian, so that a Legal Manner can be
established within the Native American Graves Protection and Repatriation
Act of 1990 for the Preservation and Protection of ALL INDIAN
CEMETERIES and or BURIAL SITES.

festern Shyosftone Historic Preservation Society
Testimony Of:

claw, ^-^l

Larry KibDy, ProgramDirector

Western Shoshone Historic Preservation Society

Page Four

291

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Full text of "Implementation of the Native American Graves Protection and Repatriation Act : hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fourth Congress, first session ... December 6, 1995, Washington, DC"

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